ByLawyers News and Updates

Assisting clients to manage their affairs – All states

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Assisting clients to manage their affairs

With the threat and uncertainty surrounding the Coronavirus many practitioners will be asked to prepare documents assisting clients to manage their affairs should the need arise.

By Lawyers commentary and precedents for Wills, Powers of Attorney, Guardianship and Directives across every state of Australia are available to help practitioners to respond to these requests.

In brief:

  • A will provides for the administration and distribution of a person’s property in the event of their death.
  • A power of attorney enables a person to empower someone they trust to conduct their legal and financial affairs on request. However, this power ceases should the principal lose capacity to authorise its use. This power can be witnessed by any adult.
  • An enduring power of attorney enables a person to empower someone they trust to conduct their legal and financial affairs without specific authorisation should the principal become unable to conduct their own affairs. Note: This power requires specific witnessing.
  • An enduring guardian or a medical power or an advance care directive. These powers are similar to an enduring power of attorney in that they allow a person to choose someone they trust to manage their health and lifestyle decisions, but not their financial affairs, should they become unable to do so themselves.

Helpful resources

The By Lawyers Wills publications provide detailed retainer instructions which can also be signed as an informal will in emergency situations should the need arise. Otherwise a will should be witnessed by two uninterested parties over the age of 18. The By Lawyers publication provides signing clauses for wills by handicapped, blind, non-English speaking and illiterate testators.

Detailed signing instructions are available and can be emailed to the client with the will should personal attendance at the office be difficult or undesirable.

The guides contain a full suite of wills for single people, people with a partner and for people with blended families. There are testamentary trust wills as well as international wills.

Practitioners will also find a full suite of the other important estate planning documents, for both financial and health & lifestyle matters.

There are practical and detailed commentaries to assist the practitioner to quickly and efficiently advise their clients on any issue of concern to them.  The retainer instructions and ‘to do’ lists ensure thorough and complete attention to all relevant considerations.

For further information

Please don’t hesitate to contact us at askus@bylawyers.com.au

CLE/CPD requirements – All states

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Timely compliance with CLE/CPD requirements has suddenly become a challenge for many small law firms. This is a result of the cancellation of seminars due to COVID-19.

With their ability to attend external events unexpectedly curtailed, the burden of professional education has reverted to firms to manage in-house. And they must do so within the strictures of remaining safe from virus risks.

Fortunately, By Lawyers can make this assist.

In-house training for CLE/CPD requirements

The By Lawyers guides are a great resource for professional education.

Whether in the office or working from home, lawyers can:

  • Read the By Lawyers Commentaries – whether relevant to their current matters, or in areas of law that they seek to brush-up on, or move into;
  • Delve into the By Lawyers Reference manuals, such as 1001 Conveyancing Answers, 101 Family Law Answers or 101 Subpoena Answers – providing detailed information and current case law related to specific client issues, or general legal concepts;
  • Review and practice drafting more complex documents in various areas of law, using By Lawyers precedents – such as an affidavit and example content in a litigation matter type;
  • Have a ‘Q & A’ session with a colleague by email or video-link – where each lawyer raises questions about practice and procedure or points of law for the other person to answer from the By Lawyers guides;
  • Present to the other members of the firm on-line by referencing or screen-sharing the relevant By Lawyers guide.

Even the compulsory units on practice management and business skills can be addressed via the By Lawyers Practice Management Guide and the related Reference Manual 101 Policies and Procedures. With sections on ethics, business planning and financial management, lawyers can use these resources to present to their colleagues or read for their own benefit.

The breadth, depth and easy accessibility of By Lawyers content makes it easy for firms to comply with in-house CLE/CPD requirements under their own steam, in any way that suits them.

These are tough times for everyone; lawyers in legal practices included. Complying with the relevant CLE/CPD requirements is a real challenge. By Lawyers makes it easier.

Amendments to domestic violence law – SA

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Recent amendments to domestic violence law have commenced in South Australia. They are contained within the Statutes Amendment (Domestic Violence) Act 2018.

Variation of interim orders

The new s 26A of the Intervention Orders (Prevention of Abuse) Act 2009 enables an applicant to apply to the court to vary an interim order issued by police.

Where such an application is made the court must hold a preliminary hearing as soon as practicable and without summoning the respondent to appear. An application can be made by telephone or other electronic means, and the preliminary hearing may occur by oral questioning of the applicant and any other available witness, or by other means contemplated by the rules including affidavit evidence. If the court thinks it appropriate, it may adjourn the hearing so the applicant can attend for questioning.

At the preliminary hearing, the court may:

  • issue an interim variation of the intervention order if it appears to the court that there are grounds for issuing the variation; or
  • determine that the application should be dealt with under s 26 without the issuing of any interim variation order; or
  • dismiss the application on any ground considered sufficient by the court.

Any interim variation issued by the court must require the defendant to appear before the court within eight days.

An interim variation of an intervention order issued by the court comes into force against the defendant when:

  • the order is served on the defendant personally; or
  • the order is served on the defendant in some other manner authorised by the court;
  • the defendant is present in the court when the order is made.

Admissibility of recorded evidence

Pursuant to the new s 13BB of the Evidence Act 1929 and the new s 28A of the Intervention Orders (Prevention of Abuse) Act 2009, the applicant, or someone else for whose protection an intervention order is sought, may give evidence via a recording. Section 28A applies in addition to, and does not derogate from, any other power of the court to receive evidence or to determine the form in which evidence may be received, including evidence in the form of a recording.

Domestic violence strangulation offence

The new s 20A of the Criminal Law Consolidation Act 1935 introduces a specific domestic violence strangulation offence—namely, choking, suffocating or strangling a person without consent with whom the offender is, or was, in a relationship. The maximum penalty for the offence is seven years imprisonment.

Amendment to publications

These amendments to domestic violence law have been incorporated into the commentary in the By Lawyers Intervention Orders guide for South Australia.

Transfer by direction – SA

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Requirements for a transfer by direction have been relaxed in SA.

A recent Revenue Ruling SDA009[V2] states that, unless additional consideration is being paid by the transferee, a Deed of Assignment or Nomination is no longer necessary for any purchaser to direct the vendor to transfer the property to any other person or entity – whether related or not.

The Ruling states that Revenue SA:

  • acknowledges that a purchaser named in a contract has a common law right to direct the vendor to transfer the land to any party the purchaser chooses. This common law right to a transfer by direction exists whether or not the purchaser executes the contract with “and/or nominee”; and
  • no longer requires a letter of agency/nomination, nor any formal assignment, where a purchaser named in a contract and the person named in the transfer pursuant to that contract are not the same.

However, stamp duty will still be payable where an assignment document is prepared and executed, or when Section 68 of the Stamp Duties Act 1923 applies.

The ruling contains an example direction to the vendor.

The Sale and Purchase commentaries in the by Lawyers SA Conveyancing publication have been updated accordingly.

Companies – FED

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Following an extensive author review, the By Lawyers Companies guide has been substantially enhanced. Users will find new commentary and a number of helpful new precedents.

The commentary now includes sections on Running a company and Company disputes.

With trademark By Lawyers practicality, the new sections of commentary assist practitioners to advise clients about most of the common issues which arise in the operation of small private companies, from managing company business, conducting meetings, issuing new shares and dealing with various types of company disputes, to negotiating share sales, handling insolvency events and participating in voluntarily winding up. Some aspects of the existing commentary on Setting up a company have also been enhanced and new precedents added.

Users will find the following new precedents have been added to the By Lawyers Companies Guide:

  • Retainer instructions – Company disputes;
  • Initial letter to company which has received a statutory demand;
  • Letter to the client  to make an appointment to sign documentation required for incorporation;
  • Letter to the client advising that the company has been incorporated;
  • Letter to the client with draft shareholder’s agreement;
  • New letters gathering information relevant to company disputes:
    • Letter to client requesting relevant documents;
    • Letter to director requesting inspection of company minutes;
    • Letter to director requesting company records; and
    • Letter to director advising of intention to seek a s 247A order to inspect company records;
  • New option precedents:
    • Notice of exercise of call option;
    • Notice of exercise of option to purchase
    • Notice of exercise of put option;
    • Notice of appointment of nominee;
    • Letter to seller’s solicitor exercising option; and
    • Letter to buyer’s solicitor exercising option;
  • Company resolution; and
  • Minutes of meeting – Directors.

These substantial enhancements to this already popular publication are part of By Lawyers commitment to constantly add value for our users and keep our content updated.

We invite you to peruse the new commentary and precedents in the Companies Guide, located in the Companies, Trusts, Partnerships and Superannuation publication. Also available in the Reference materials folder on each of these matter plans is the helpful reference manual Business structures and comparative table, which compares and contrasts the different types of business structures and considers their advantages and disadvantages, including from a taxation point of view.

 

 

 

Powers of Attorney – All states

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The By Lawyers Powers of Attorney Guides have been updated. Amendments address the issue of attorneys who require access to the principal’s will to enable them to make informed decisions.

Generally, attorneys are not entitled to access their principal’s will. However, in some cases it is important that the attorney reviews the principal’s will, to ensure the attorney acts in accordance with the best interests and the wishes of the principal.

For example, the attorney may need to sell one of the principal’s assets to fund medical care of the principal. By reviewing the principal’s will, the attorney can learn that a particular asset has been specifically bequeathed. The attorney may therefore decide not to sell the bequeathed asset and instead sell an asset that will form part of the residue of the principal’s estate.

The following changes have been made to the Powers of Attorney publications in each state:

  1. New sections of Commentary discussing the issue;
  2. A new question in the Retainer Instructions to prompt consideration of the issue; and
  3. A new precedent clause Access to will has been added in the Library of Clauses for Power of Attorney.

Family provision claims – SA

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The new By Lawyers Family Provision claims – SA Guide has received its first update. A recent Supreme Court case on joinder has been added.

A solicitor might receive instructions from a potential claimant after the client receives notice, as a person with an interest in the estate, from another claimant who has already commenced proceedings. Plaintiffs in Family Provision claims are required under the Inheritance (Family Provision) Act 1972 to serve other potential claimants with the proceedings.

Those potential claimants may then make an interlocutory application within 28 days of service, seeking to be joined as a plaintiff under s 8(7) of the Act. That section provides that the court may, ‘if satisfied that it is just and expedient to do so’, permit joinder of further claimants at any time prior to the final determination of the proceedings.

The recent Supreme Court case of Columbus v Efstathis & Ors [2019] SASC 149 makes it clear that in considering such an application, the court will in effect need to be satisfied that the applicant has reasonable prospects of success.

In that case the court found there was no reasonable prospect of the applicant, a grandchild of the deceased, establishing any moral obligation on the part of the deceased to have made provision for the applicant out of the estate. Leave for the applicant to be joined as a claimant was therefore refused.

In the course of its determination, the court reviewed the case law on the status of grandchildren with Family Provision claims, affirming the NSW Supreme Court decision of Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 in finding that ‘as a general rule a grandparent does not have a responsibility to make provision for a grandchild in his or her testamentary disposition’.

This useful case has been added to the Family Provision claims – SA Commentary on page 25 under Acting for a potential claimant.

Letter to client after exchange – All states

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A precedent update has followed recent user feedback. Significant amendments have been made to the Letter to client after exchange in the Purchase of Real Property Guide, for all states.

This useful precedent letter now includes headings and better reflects the process of payment of duty.

The areas covered, now organised under the new headings, are as follows:

  • GST
  • Investigation of title
  • Duty and concessions
  • Insurance
  • Pre-settlement

At By Lawyers we love to receive feedback from our users and they are often the reason that we update our precedents.

New guide – Family Provision Claims – SA

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South Australian subscribers are invited to explore By Lawyers new publication, Family Provision Claims (SA).

This practical guide contains matter plans, commentaries and precedents for Acting for the Plaintiff and Acting for the Defendant.

Precedents in Acting for the Plaintiff guide include:

  • Retainer instructions;
  • Letter to client with initial advice;
  • Initial letter to estate or their solicitor;
  • Deed of settlement;
  • Deeds of family arrangement;
  • Brief to counsel;
  • Initiating application;
  • Affidavit in support;
  • Outline of submissions;
  • Example court book index;
  • Letter to plaintiff finalising the matter.

Precedents in Acting for the Defendant guide include:

  • Retainer instructions;
  • Letter to estate with initial advice;
  • Letter to claimant’s solicitor in response to their initial letter;
  • Letter reporting to estate on settlement;
  • Rule 315 affidavit of executor or administrator;
  • Defendant’s position paper for mediation;
  • Example formal offer;
  • Letter to defendant finalising the matter.

The commentaries in both Acting for the Plaintiff and Acting for the Defendant include:

  • Overview and time limits;
  • Managing the lawyer-client relationship and client identification;
  • Time and costs estimates;
  • Taking instructions and advising on the claim;
  • Assessing the merits of a claim;
  • When the court can make an order;
  • Assessing and calculating adequate provision;
  • Considering competing interests;
  • When to negotiate and tips for effective negotiation;
  • Mediation;
  • Commencing the claim
  • The first directions hearing date;
  • Costs and the supervisory approach taken by the court to costs;
  • The procedure following an order.

The By Lawyers South Australian Family Provision Claims publication is a comprehensive and practical resource for practitioners who are advising and representing either claimants or estates.

Suspicious circumstances – Wills – All states

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Suspicious circumstances surrounding the drafting and execution of a will were considered in a recent NSW Court of Appeal case.

The validity of a will can be challenged by those who have standing. These include the people who are affected by it or a previous will. They may suspect the testator lacked the capacity to make the will, or that it was executed under duress, or other suspicious circumstances.

Where a will is executed under apparently suspicious circumstances the onus of proving that nothing untoward occurred is borne by the person propounding the will. Probate will not be granted unless the propounder allays those suspicions.

In Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197 at [147] the Court of Appeal considered the onus had not been discharged, despite the primary judge having granted probate of the will.

The suspicious circumstances in that case included the instructions for the will and a power of attorney having not come from the testator/principal, an unexplained variation of the instructions, the description of the executor/beneficiary as the testator’s ‘daughter’ when they were in fact unrelated, the unwarranted urgency and the subsequent transfer of the testator/principal’s residential property to the attorney for nominal consideration. The case was also complicated by the attending solicitor’s decision to destroy an original file note and create a more detailed version some months later, after having also acted for the attorney regarding the transfer of the property.

The mechanical treatment of the suspicious circumstances doctrine by the first instance judge in this case led the Court of Appeal to suggest ‘a preferred approach’ at [164]-[173], although the court observed that the limits of the doctrine ‘can scarcely be regarded as settled’.

Practitioners should take care to observe and inquire about any apparently suspicious circumstances surrounding the instructions for and the execution of wills and other personal documents. Properly identifying the client is a basic precaution, but enquiring about relationships and motivations may also be warranted. Confirming instructions with the client in the absence of those who might benefit from the documents is also prudent. Clear, accurate, detailed and contemporaneous file notes are always advisable.

This interesting case has been added to the By Lawyers 101 Succession Answers (NSW) publication.

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