ByLawyers News and Updates

Family Provision Claims review – VIC

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Our Victorian Family Provision Claims publication has just had a comprehensive review. We invite you to peruse our updated matter plans for Acting for the Plaintiff and Acting for the Estate in Family Provision claims – or ‘TFM’ claims as they are still generally known.

While many updates to By Lawyers publications arise from changes to legislation, developments in case law, or when subscribers ask us for new content, at By Lawyers we also routinely enhance and develop our publications as part of our commitment to continual improvement.

New/reviewed precedents in Acting for the Plaintiff include:

  • Letter to client with initial advice;
  • Initial letter to estate solicitor;
  • Affidavit of the plaintiff (Estate greater than $500K);
  • Position statement of the plaintiff (Estate less than $500K);
  • Affidavit of the plaintiff’s solicitor re costs;
  • Approval of compromise order (new TFM List precedent);
  • Letter to estate solicitor before first directions hearing;
  • Minutes of order for TFM first directions hearing;
  • Example content – Directions;
  • Letter to potential additional defendants;
  • Letter to real estate agent seeking market appraisal of real property;
  • Example content – Plaintiff’s position statement for hearing;
  • Letter to plaintiff finalising the matter.

New/reviewed precedents for Acting for the Estate include:

  • Letter to estate with initial advice;
  • Letter reporting to estate on settlement;
  • Approval of compromise order;
  • Affidavit of executor OR administrator of the estate;
  • Minutes of order for TFM first directions hearing;
  • Example content – Directions;
  • Letter to potential additional defendants;
  • Letter to real estate agent seeking market appraisal for comparison to plaintiff’s market appraisal;
  • Letter to real estate agent seeking market appraisal of estate’s property;
  • Letter to estate solicitor before first directions hearing;
  • Example content – Defendant’s position statement for hearing;
  • Application for leave to appeal;
  • Letter to plaintiff finalising the matter.

Our matter plans are structured so that everything required is at hand. For instance, certifications required on filing your documents in court are included – Overarching Obligations Certification and Proper Basis Certification.

The commentary in both Acting for the Plaintiff and Acting for the Estate has been enhanced, to include:

  • managing the lawyer-client relationship and client identification;
  • time and cost estimates;
  • taking instructions and advising on the claim;
  • assessing the merits of a claim;
  • when the court can make an order;
  • factors the court must consider
  • factors the court may consider;
  • 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.

Our Victorian Family Provision Claims Guide is a comprehensive and practical resource for small law firms.

Providing feedback to By Lawyers

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At By Lawyers we love to receive feedback from our subscribers. We are available via email: askus@bylawyers.com.au.

We always respond promptly to issues or suggestions about our guides and precedents.

For LEAP users there are two additional ways to provide feedback:

  • When in a LEAP matter, in the top right hand corner of the screen there is a blue Question Mark icon. Clicking on it reveals a drop-down box for the LEAP Community pages – one of these is ‘Help, support and feedback’.
  • When using any precedent in LEAP, there is  always a ‘Provide Feedback’ button in the ribbon at the top of the document, next to ‘Save to matter as PDF’. This opens to a feedback form where any issues or suggestions regarding the precedent can be provided. Where such feedback relates to a By Lawyers precedent, LEAP send it on to us and we will always address it promptly, directly with the user.

By Lawyers have often introduced new precedents or enhanced our commentaries as a result of subscriber suggestions. Whenever we see a need for the proposed additions or amendments we are happy to oblige, so as to benefit not only the firm that made the request but all of our other users as well. Sometimes our subscribers will not only identify an issue, such as a new precedent that might be needed, but they will also provide us with the resolution – a precedent they have developed themselves and are happy for us to publish for the assistance of others. The law is, after all, a noble profession and helping each other in a collegiate way is one of the hallmarks of being a lawyer.

Our goal at By Lawyers is to help our subscribers enjoy practice more. Responding to feedback is one of the ways we do it.

Wills – Avoiding family provision claims

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Clients often require advice on avoiding family provision claims, when considering their estate planning.  New commentary has been added to the By Lawyers Wills Guides concerning the issues that should be considered when drafting a will in circumstances where a family provision claim against the estate of the testator appears possible.

This new commentary considers two common issues raised by testators when giving instructions for wills:

  1. How to leave their estate to their partner and prevent children or step children from making a claim on the estate; and
  2. How to leave the estate to their partner, whilst ensuring their children by a prior relationship are benefited on the death of that partner.

The commentary discusses some general principles from the cases and provides a range of likely outcomes for a number of classes of claimants under family provision legislation, which will assist practitioners when they are advising clients who are deciding how to distribute their estates to best avoid a potential claim.

In essence, while there is no absolute way of avoiding a family provision claim by an eligible person against a testator’s estate, appropriate consideration when preparing a client’s will can minimise the prospects or quantum of any claim, or at least ensure the testator has a clear understanding of the issues.

Practice management for small law firms

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Practice management is both one of the most important and one of the most frequently neglected aspects of being a lawyer. The imperatives of doing the clients’ work too often mean that practice management takes a back seat and the future direction, expansion and profitability of the firm becomes an afterthought.

The 11 Habits of highly successful small law firms is an article by Richard Hugo-Hamman, the Executive Chairman of LEAP Legal Software, who has been helping small law firms to make more money for over 25 years. This very informative and inspirational article was recently published on LinkedIn and Richard has kindly permitted us to reproduce it within the Reference Materials folder in the By Lawyers Practice Management guide.

The article contains numerous valuable insights for anyone running a small law firm or thinking of doing so. Richard draws on his enormous international experience to distil the key habits that define highly successful small law firms.  In summary he concludes that:

  1. They are efficient;
  2. They enjoy practising law;
  3. They employ smart people and treat them really well;
  4. They have selected areas of law they like and focus on them;
  5. They dedicate time to building the firm as a business;
  6. They are early adopters of technology;
  7. They confront the challenges of getting paid and solve them;
  8. They have standard processes and procedures in place for all matters;
  9. They make compliance a natural consequence of running a firm well;
  10. They become experts in customer service;
  11. They understand their finances.

We highly recommend reading Richard’s article, which calls upon you to ACT!

Victoria – deregulated Contract of Sale

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Consequences of the deregulated Contract of Sale of Land

What were the regulations?

The Estate Agents (Contracts) Regulations 2008 (‘regulations’) reached their sunset date on 11 August 2018. Consequently, those regulations and the amending regulations in 2011 and 2014, are revoked. The regulations bound estate agents, but not legal practitioners and conveyancers.

Legal practitioners and conveyancers may prepare contracts of sale of land in any form, and such contracts, provided they satisfy formal requirements, will be enforceable. The regulations on the other hand required estate agents to prepare contracts in the ‘prescribed form’, unless an agent used a form of contract prepared by a legal practitioner or conveyancer.

What does the deregulation mean?

The revocation of the regulations notionally means that the minority of estate agents who chose to prepare contracts are left with no prescribed form of contract. However, s 53A of the Estate Agents Act 1980 authorises agents to use contracts that are approved by a professional association, within the meaning of the then applicable Legal Profession Act 2004. The prescribed contract was approved by the Law Institute of Victoria (LIV) and the revocation of the regulation does not affect that approval. The current version of the LIV contract includes a warranty in GC 2.1 that the general conditions of the contract are identical with the general conditions prescribed in the regulations. That warranty would appear to be unaffected by the revocation of the regulations.  Thus, we can expect that the prescribed contract will continue in general use into the near future.

What are the alternatives to the prescribed contract?

Whether the deregulation of the contract will result in other forms of contract becoming common is yet to be seen. It would be fair to say that special conditions created to accommodate recent changes, including CGT & GST withholding, have resulted in the LIV contract becoming unwieldy and the use of alternative contracts increasing.

The By Lawyers contract is ready and waiting

The By Lawyers Contract of Sale of Land for Victoria was introduced on 1 March 2018 and its use has been increasing steadily among Victorian legal practitioners and conveyancers. The By Lawyers contract covers CGT & GST withholding in simple terms, without the need for Special Conditions, and has a number of other advances over the LIV contract which further simplify the conveyancing process.

Some of the compelling reasons to use the By Lawyers contract include:

  • it is co-authored by Russell Cocks, who has brought to the task 40 years of hands-on Victorian conveyancing experience and Guy Dawson of By Lawyers, arguably the most widely read legal author in Australia today; and,
  • the By Lawyers legal and editorial teams ensure the By Lawyers contract is always up to date with any changes in the law or practice.

For further information you can read the related post Seven reasons to use the By Lawyers contract.

The By Lawyers Contract of sale of Land is available to LEAP users and can also be accessed through the By Lawyers website by subscribing to the Conveyancing Guide.

Leases – New precedent – Deed of amendment – unregistered lease

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As a result of some helpful feedback from one of our subscribers in Queensland, By Lawyers has added a new precedent ‘Deed of amendment – Unregistered lease’ to all our Act for Lessor matter plans across the country. This deed can be used to record an agreed amendment to an unregistered lease. It includes the following key provisions:

  • Variation details – to be set out in either the operative provisions or in a schedule to the deed;
  • A clause to extend any guarantor covenants in the original lease to the amendments;
  • A clause confirming the terms of the original lease as amended.

At By Lawyers we value feedback from our subscribers and often enhance our publications as a result.

This new Deed is the latest addition to our library of over 6,500 precedents…and counting!

Trusts – New precedent – Deed of termination

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Following a subscriber request, we have added a new precedent to our Unit Trusts Guide, being a Deed of termination of trust.

There are many reasons a client may wish to terminate or dissolve a trust prior to the vesting date. There are also several methods of bringing a trust to an early end including:

  • complete distribution of the trust property by the trustee;
  • revocation by the settlor or trustee;
  • the beneficiaries or unit holders consent to end the trust; and
  • a Court ordered termination of trust.

When brining a trust to an end there are many important issues for the trustee to consider including:

  • the procedures prescribed by the original trust deed;
  • all possible creditors; and
  • all possible taxation consequences – particularly CGT arising from the sale of any trust assets or in specie distributions.

The need for a deed confirming the termination of the trust was suggested by one of our subscribers. Having considered the issue, By Lawyers have created a simple new precedent Deed poll, terminating the trust. This will allow practitioners to ensure that when their trustee clients terminate a trust it is evidenced and supported by proper documentation.

At By Lawyers we are always grateful for any feedback on our precedents and will happily accommodate subscriber requests for new documents where appropriate.

 

 

SMSFs – New precedents – Retainer instructions

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We have published two new Retainer Instructions precedents in our Self Managed Superannuation Funds Guide.

The Retainer Instructions – Self managed superannuation fund is designed to assist practitioners when taking instructions from clients who are establishing a new fund. It covers all of the essential information required for the superannuation trust deed, including trustee and member details.

The Retainer Instructions – Existing self managed superannuation fund is designed to be used when a client wishes to make changes to an existing self managed superannuation fund that has already been established. It can be used to record instructions for a variety of situations including:

  • changing the fund trustee;
  • amending the rules of the fund;
  • making a new death benefit nomination or reversionary pension nomination; and
  • establishing a limited recourse borrowing arrangement.

Retainer instructions, which appear in “Getting the matter underway’ on all By Lawyers matter plans, are not only a useful precedent for file opening and matter management, they are a critical risk-management tool ensuring that all necessary information is obtained from the client and recorded.

Family Law – FCC costs increases

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There have been costs increases in the Federal Circuit Court for itemised costs in family law and child support proceedings, pursuant to Schedule 1 of the Federal Circuit Court Rules 2001.

The increases are for initiating applications and other hearing-related costs.

An alert has been added to the By Lawyers Children and Property settlement publications.

New podcast – Domestic Violence update

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An update on the national enforcement scheme and domestic violence leave

The last week of July marked White Ribbon Night, an important date for raising awareness of the issues faced by victims of domestic violence.

Join LEAP’s National Marketing Manager, Claire James and By Lawyers Senior Consultant and Editor Brad Watts for a discussion on domestic violence laws across Australia.

The podcast discusses the National Recognition Scheme for Domestic Violence Orders and the new entitlement to domestic violence leave under Modern Awards.

Recent updates to the By Lawyers Domestic Violence and Employment Law Guides are highlighted.

White Ribbon Australia is an organisation that promotes the prevention of violence against women in Australia by engaging men to make women’s safety a man’s issue too.

 

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