ByLawyers News and Updates

1 July – All states

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1 July updates are always a big focus for By Lawyers. Many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts, and adjustments – usually increases – in government fees and charges. These regular updates occur at the start of every financial year and they impact many different areas of law, and therefore numerous By Lawyers publications.

The 1 July updates include court filing fees, lodgment fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, the cap on damages in defamation claims, and penalty units for fines for various criminal offences and civil penalty provisions.

By Lawyers always monitor and apply these changes for our subscribers. Each year we ensure our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and other specific dates for various areas of law as prescribed by some statutes.

The 1 July updates have been applied this year, or are in the process of being applied as they get released, to the following By Lawyers publications:

Quite separately, there is also new and amending legislation from both Commonwealth and state parliaments that commences on 1 July. Substantive amendments have been made to a number of By Lawyers publications to account for the commencement of such legislation. Please see the various other By Lawyers News & Updates posts dealing with those updates.

By Lawyers is always up to date!

Powers – NSW

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Among By Lawyers most frequently used precedents in New South Wales are powers of attorney, appointments of enduring guardian, and the related personal documents associated with lifestyle, health, and estate planning. With an ageing population it is not surprising that lawyers are increasingly called upon to advise their clients on these documents and to prepare one or more of them, often at the same time a client gives instructions for preparation of their will.

As a result of feedback from our subscribers, a number of formatting amendments have been made to the following precedents, with a view to maximising the benefits of document automation, ensuring consistency, and enhancing usability:

  • General powers of attorney;
  • Enduring powers of attorney;
  • Appointments of enduring guardian;
  • Advance care directive;
  • Revocations.

We encourage and value all feedback from subscribers using these and our other precedents; it is one of the ways that we consistently enhance and update our content.

These precedents are found in the Powers of Attorney, Appointment of Enduring Guardian, and Advance Care Planning (NSW) publication.

Until 2003, powers of attorney in NSW were made under the Conveyancing Act 1919 and were used to cover all decisions relating to both the donor’s financial affairs and any health or lifestyle decisions to be made on their behalf. With the introduction of the Powers of Attorney Act 2003 and related amendments to the Guardianship Act 1987 passed at the same time, the parliament created the current regime under which decisions about a donor’s financial affairs are covered by a general power of attorney or, if the donor has lost capacity, an enduring power of attorney, and decisions relating to a donor’s health and lifestyle are covered by their appointment of an enduring guardian. Powers of attorney previously prepared under the Conveyancing Act 1919 remain effective under the Powers of Attorney 2003.

Transfer duty – NSW

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A recent case dealing with transfer duty on real property in deceased estates has been added to the By Lawyers wills and estates publications in New South Wales.

A reassessment of duty almost 5 years after the transaction is a cautionary tale for practitioners to ensure compliance with the Duties Act 1997 and relevant transfer duty rulings.

Section 63 of the Duties Act 1997 provides for concessions when dutiable property is transferred pursuant to a will or the laws of intestacy. The concessions apply when a transfer is made to a beneficiary in conformity with the trusts contained in a will, or arising on an intestacy, or as an appropriation of the deceased’s property towards satisfaction of a beneficiary’s entitlement in the estate.

When a transfer is made to a beneficiary under an agreement, whether or not in writing, to vary the trusts contained in the will or arising on intestacy, the dutiable value of the property is reduced by the value of the beneficiary’s entitlement.

However, under s 63 and NSW Revenue Ruling DUT 046, the transfer duty concessions do not apply to a contract of sale, only to a transfer.

This was confirmed in Cohen v Chief Commissioner of State Revenue [2024] NSWCATAD 136, in this case, Harry Cohen left a property to his three children, Stephen, Peter, and Wendy, in equal shares. The beneficiaries agreed that Stephen could have the property if he paid each of his siblings for their one-third share plus an extra $100,000 each. Rather than a transfer pursuant to a deed of family arrangement, the executors of the estate executed a contract to sell the property to Stephen for the total value.

The contract was submitted to Revenue NSW in 2017, noting that Stephen was beneficially entitled to a one third share of the property from his father’s estate. Duty was assessed and paid on the reduced dutiable value, reflecting Stephen’s one-third interest in the property.

In 2022, the Chief Commissioner issued a Notice of Investigation and ultimately decided that duty had been underpaid. The reassessment stated the dutiable value was the full value of the property as shown on the contract, not two-thirds as initially assessed, resulting in a further duty liability of $29,315.00 plus interest, which was ultimately waived.

The commentary in the By Lawyers Probate (NSW) and Letters of Administration (NSW) guides has been enhanced to cover this situation, and a summary of the case is being added to both 101 Succession Answers (NSW) and 1001 Conveyancing Answers (NSW).

Advance care directives – TAS

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Advance care directives made under the laws applicable in some other Australian states will now be recognised in Tasmania.

Section 35ZN of the Guardianship and Administration Act 1995 provides that a validly made interstate advance care directive that has substantially the same effect as instruments under the Act can, by notice published in the Gazette, be recognised in Tasmanian.

The Gazette notice Advance Care Directives Corresponding Laws published on 22 May 2024 provides for the recognition in Tasmania of advance care directives made in the following states and territories:

  • Australian Capital Territory;
  • Queensland;
  • South Australia;
  • Victoria;
  • Western Australia; and
  • Northern Territory.

The By Lawyers Powers of Attorney, Enduring Guardianship, and Advance Care Planning (TAS) guide has been updated accordingly.

Electronic signing and witnessing

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A new guide to Electronic Signing and Witnessing has been added to the Reference Materials folder on all By Lawyers matter plans.

This helpful resource summarises the various legislation across all Australian jurisdictions for electronic transactions.

Electronic signing and witnessing

In Australia under federal, state, and territory legislation many transactions can be completed electronically.

Electronic signing and witnessing are available for many, but not all, transactions and documents encountered in every day practice. However, the availability of electronic signing and witnessing is considerably different in each jurisdiction.

The new guide summarises the applicable legislation in each jurisdiction, to assist practitioners understand when electronic signing and witnessing is permitted and how it can be done.

Legislation

The Commonwealth took the lead on legislation to enable electronic transactions at the turn of the millennium, and sought the cooperation of the states in enacting consistent laws across all jurisdictions, resulting in the following legislation:

Electronic Transactions Act 2001 (ACT)

Electronic Transactions Act 1999 (CTH)

Electronic Transactions Regulations 2020 (CTH)

Electronic Transactions Act 2000 (NSW)

Electronic Transactions Regulation 2017 (NSW)

Electronic Transactions (Queensland) Act 2001 (QLD)

Electronic Transactions (Northern Territory) Act 2000 (NT)

Electronic Transactions (Northern Territory) Regulations 2001 (NT)

Electronic Communications Act 2000 (SA)

Electronic Communications Regulations 2017 (SA)

Electronic Transactions Act 2000 (TAS)

Electronic Transactions Regulations 2021 (TAS)

Electronic Transactions (Victoria) Act 2000 (VIC)

Electronic Transactions (Victoria) Regulations 2020 (VIC)

Electronic Transactions Act 2011 (WA)

Electronic Transactions Regulations 2012 (WA)

Unfortunately, the approach taken by each state and territory to implementing this legislation differs to various degrees from both the Commonwealth’s and each other’s. Each jurisdiction has exempted certain statutes, transactions, and documents from the operation of their Act or some of its provisions.

This means that, while all jurisdictions have laws providing for electronic transactions and electronic signing, and some have laws for audio visual witnessing, the documents that can be electronically signed and the requirements for execution vary between the jurisdictions.

The new guide brings all of this information together for practitioners to easily reference in any matter they are working on.

101 Succession Answers – QLD

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Two new Supreme Court cases have been added to the By Lawyers reference manual 101 Succession Answers (QLD).

In Re Chambers (dec’d) 2023 QSC 230 irregularities with signing a will did not invalidate it. The testator and the witnesses had missed signing parts of a two-page, pre-printed, will form. The court found there was no question that the testator intended the document to be a testamentary instrument. The evidence showed that he signed it, the two witnesses were both present and saw him sign it, and they each signed the will in his presence.

In Re Briggs (dec’d) [2023] QSC 226 the issue of capacity was determined without expert medical evidence. Letters written by two treating doctors shortly before the dates of the relevant will certifying the deceased did not have capacity for decision-making were enough for the court to find she had no testamentary capacity.

Interestingly, both of these cases were determined without oral evidence, under r 489 of the Uniform Civil Procedure Rules 1999 (QLD). This can occur in any case, on the application of a party, unless the court thinks it inappropriate. In Briggs the court noted:

Nothing in either r 489 or r 491 expressly defines the notion of disposal without oral hearing being “inappropriate”. The meaning of the term “inappropriate” must be taken from the context and purpose of the rule. Here, the clear purpose of r 489 is the efficient and economical disposal of the Court’s business. The primary aim though of the Court in exercise of any of its jurisdiction is to do justice. It will not be “inappropriate” to exercise the Court’s jurisdiction to determine the application without oral hearing where justice can be done without an oral hearing.

101 Succession Answers (QLD) is available in the Reference Materials folder in Folder A. Getting the matter underway on all succession related matter plans: Probate, Letters of Administration, Family Provision Claim, Wills, Powers of Attorney and Advance Health Directives.

Probate – NSW

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From 1 August 2023 most applications for an uncontested grant of representation must be applied for and filed online. The lodgment platform is available via the Probate tab on the Supreme Court website, and on the NSW Online Registry website. New users are required to register for an account.

The online process provides guidance as to the evidence required for a grant to be determined. It is intended to facilitate uncontested probate matters being processed quickly and accurately.

The new system applies also to applications for Reseal, and Letters of Administration.

Under the new process applicants are no longer required to lodge notice of an intended application at least 14 days prior to filing a summons. Instead, a notice of intended application will automatically be generated when an online application is filed.

The current paper forms will no longer be used. The new Probate system will generate the summons, affidavit of executor or administrator, inventory of property, and grant based on the information provided in the online application. These documents are then downloaded, executed, and filed via the online system. The system prompts for and allows additional affidavit evidence to be uploaded.

Rather than the previous process where applicants provided the court with a pre-paid envelope for the sealed copies to be returned when the grant is made, the new Probate system will generate these documents with a digital seal on each page. Copies of the grant will be immediately available for download once the grant issues.

Copies of testamentary documents, such as wills and codicils, are scanned and uploaded into the new Probate system. The originals of testamentary documents must still be filed with the court registry, either personally or by mail. They must be accompanied by a coversheet. See our previous News & Updates post: Wills coversheet.

The court has advised that  the registry will continue to accept paper-based applications up to and including 1 September 2023 to assist with the transition.

The By Lawyers Probate (NSW) and Letters of Administration (NSW) guides have been updated accordingly.

1 July updates – All states

by

1 July updates are always a big focus for By Lawyers. Many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts and adjustments – usually increases – in government fees and charges. These regular updates occur at the start of every financial year impacting many different areas of law, and therefore numerous By Lawyers publications.

These updates include court filing fees, lodgment fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, and penalty units for fines for various criminal offences and civil penalty provisions.

By Lawyers always monitor and apply these changes for our subscribers. Each year we ensure our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and other specific dates for various areas of law as prescribed by some statutes.

The 1 July updates have been applied this year, or are in the process of being applied as they get released, to the following By Lawyers publications:

Quite separately, there is also usually a raft of new and amending legislation from both Commonwealth and state parliaments which is set to commence on 1 July. This year is no different in that regard. By Lawyers have made various substantive amendments to a number of publications to account for the commencement of such legislation. Please see the various other By Lawyers News & Updates posts dealing with those updates.

By Lawyers always keep our content – and our subscribers – up to date!

Wills coversheets – NSW

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Wills coversheets are now mandatory at the New South Wales Supreme Court Probate registry for Wills filed online.

From 1 July 2023, when an application is filed online, and the original will is sent to the registry, it must have a coversheet.

NSW Online Registry can be used to lodge an application for either probate, or letters of administration with the will annexed. However, when filing the application online, the new rule 13.4 under the Uniform Civil Procedure Rules requires the original will to be filed at the registry or by post within seven days after the online filing with either the coversheet printed from the Online Registry or one that shows the case number.

The By Lawyers Probate (NSW) and Letters of Administration (NSW) matter plans contain precedent wills coversheets.

The commentary in those publications on filing applications has been updated accordingly.

Succession & Probate Lists – NSW

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The New South Wales Supreme Court has introduced combined Succession & Probate lists, for family provision claims and contested probate applications.

The new list replaces the Family Provisions Claims list previously managed by Justice Hallen, who is retiring. The court has never previously had a specialist list for contested probate matters.

Re-issued Practice Note SC EQ 07 – Succession & Probate Lists updates the procedures applicable to family provision and contested probate matters in the Court.

Key points include:

  • These types of matters will be managed and heard in the Succession & Probate List.
  • Directions and the hearing of interlocutory motions will be dealt with on Fridays, with Monday directions being phased out.
  • There will be two judges managing the list, initially Justices Meek and Lindsay.
  • There will be two judges available for the list on Fridays.
  • If possible, family provision applications whether combined with probate or not, will be dealt with by one judge and probate matters will be dealt with by the other judge.
  • Most interlocutory motions for matters in the list will require leave except urgent matters which can be listed by arrangement.
  • Subpoenas and Notices to produce for matters in the list will require leave.
  • Mediation for all matters in the list will be court annexed by default, unless the parties consent to private mediation or the Court otherwise orders.
  • Requirements for the content of the plaintiff’s affidavit in Family Provision matters updated.

The Court has indicated that the emphasis of the new list will be on strict case management and efficiency, in accordance with the overriding principal of just, quick and cheap disposal of the real issues in the proceedings under Section 56 Civil Procedure Act 2005 .

By Lawyers Family Provision Claims (NSW) and Supreme Court (NSW) – Equity Division guides have been updated accordingly, including the Retainer Instructions precedents which prompt practitioners to obtain the necessary instructions and documents required by the practice note.

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