Ross Legal Pty Ltd

Drafting a child support agreement – what’s the big deal?!

Entering into a private Child Support Agreement with the other parent could be a great tool for parents that may wish to set their own terms as to financial responsibilities of one or both of them towards their child or children.

But it’s not as easy as signing a one-page document you DIY. A lot of research, thought and drafting should go into the Agreement and that is why, when we draft your Agreement, we have all our tabs open. Let’s take a look at just some of the considerations that are at play.

❗️As always, this post is general comment only, and not intended as legal advice.

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Why not book an obligation-free consultation to get some clarity.

Reach us here, on email [email protected] or phone (03) 9752 2388

This one’s a tad long, but important!

The concept of ‘ademption’ states that if a Will-maker leaves a specific asset to a beneficiary in their Will and the asset is no longer in existence at the date of the Will-maker's death (ie the Will-maker sold it during his or her lifetime), the gift fails and the beneficiary won’t be compensated for the loss.

The rule developed borne of an assumption that the Will-maker was at all times aware of what they left in their Wills and would simply re-do their Will after disposal of the gifted asset if they so wished. If they did not subsequently revisit their Will, the assumption was that it was their intention that the beneficiary of the specific gift receive nothing in replacement. There were some exceptions, but they did not cater to all situations.

What if the Will-maker had lost capacity and their property was sold by their appointed attorney to move them into care?

What if the Will-maker could not update their Will due to loss of capacity?

This changed in Victoria in 2017 with updates to legislation which now provide that a beneficiary under a Will has the same interest in any money or other property arising from a sale, mortgage, exchange, partition or other disposition of gifted property that they would have had if the disposition had not occurred.

D will not miss out and will be entitled to say, the accommodation bond refund.

BUT (and there is always a but!)

If in the above scenario the deceased’s bank accounts, cars and collectables have also been sold to say, provide for further daily expenses of the deceased and the effect of the ‘anti-ademption’ places S at an unjust disadvantage (ie D walks away with majority of the Estate assets), the Court can step in to rectify the situation!

Don’t leave it to chance and guesswork or make it difficult for your beneficiaries – draft your Will with the minutiae of detail it deserves and cover each foreseeable development.

Contact our office and we can help you with your Will and Powers of Attorney needs.

Watch this space for a Christmas special announcement! ⚖️

A sober reminder that when we assist you to make or renew your Will, we must carry out all due diligence; we do so for good reason, to ensure that as far as is practicable, things like this can be avoided. A good result for the family but at what cost, financial or otherwise.

https://www.theage.com.au/national/victoria/war-veteran-lacked-mental-capacity-to-give-house-and-fortune-to-hairdresser-20220622-p5avrp.html?utm_medium=Social&utm_source=Facebook&fbclid=IwAR1PEkboOmHpi_m9RTOG-77BHBifd-0MsuyR78c6Uwgd2MoUJZTla8FudNg =1655955258

War veteran lacked mental capacity to give house and fortune to hairdresser A decorated World War II veteran tried to give more than $1 million worth of property and cash to a hairdresser in the months before he died. But the Supreme Court found the 97-year-old was not fit to alter his will.

FYI BITE:

From 1 July 2022 the Federal Circuit and Family Court of Australia are increasing their filing fees. You can see the increase here - https://www.fcfcoa.gov.au/news-and-media-centre/latest-news/fl-fees-increase-2022?fbclid=IwAR3TKFuvGbLKwd18ibUmwg_N7bxeIcTm0r8G4tbQ08BL0FZEjzyAP392FPM

So is the Supreme Court of Victoria. You can see the increase here - https://www.supremecourt.vic.gov.au/forms-fees-and-services/fees #:~:text=All%20Court%20fees%20payable%20to%20the%20Prothonotary%2C%20the,under%20the%20Monetary%20Units%20Act%202004.%20Fee%20regulations

Get in touch if you need assistance across any of these jurisdictions and we can work together to resolve your legal issues.

We have absolutely amazing clients!

It brings us so much joy to be able to be part of someone’s life chapter, and to guide and help them through the legal waters onto the new beautiful, bright chapter of their lives! We are blessed to be part of their journey and lives.

If you need assistance, we can assist you in the New Year and look forward to working not only for you, but with you.

What’s your limit?

Do you know your time limits when it comes to family law matters?

Can you have a settlement with your ex at any time you wish?

Do you have to be Divorced first to enter into a family law property settlement? Or vice versa?

What about children’s Orders, when can they be made?

Surely, whenever I am ready, the Court will just take my matter on.

Unfortunately time can be of the essence here, depending on the facts of your matter. Always seek independent tailored legal advice.

What is important to keep a track of if you are in de facto relationship, is the date of separation. De facto couples have only two years from the date of separation in which to enter into an agreement by consent or else commence legal proceedings at Court.

What is important to keep a track of if you are married, depending on what you require, is the date of separation (if you want to obtain a Divorce) and the date of Divorce (if you want to obtain a property settlement). You can apply for a Divorce if you have been separated 12 months. Once you obtain a Divorce, time starts ticking – you only have 12 months again after the Divorce Order, in which to issue Court proceedings if you cannot otherwise reach resolution by consent.

If I’m out of time, what can I do? Watch this space and make sure you follow us as this will be addressed in our next post.

If you remain unsure or wish to check the time limits that may apply to you or discuss your particular set of circumstances, please reach out to a friendly advisor on the other end of the line – (03) 9752 2388 or [email protected] or send us a message!

There is a presumption amongst family law clients that it is only proper to address making a Will and Powers of Attorneys after a certain event, be it entering into final Orders or obtaining a Divorce Order.

Here’s the TOP REASONS why we recommend you DO NOT WAIT but instead, prioritise, making / renewing these documents during a separation:-

If you HAVE an existing Will - whilst a Divorce revokes your former spouse’s entitlements in the existing Will (and removes them from any appointed positions such as executor), a mere separation will not - the benefits to your spouse will stand. There is a separation period of 12 months before parties can apply for a Divorce. If you die during this time without updating your Will, the consequences could be dire.

If you DO NOT HAVE a Will - your partner/ spouse could receive the bulk, if not all of your Estate by default under the provisions of your State/ Territory legislation.

If you HAVE existing Powers of Attorney (medial and financial) – you may have appointed your spouse to assist you to manage your financial affairs or to make medical treatment decisions for you and on your behalf in the event you lose decision-making capacity. This may be a less than favourable position in light of the separation.

If you DO NOT HAVE Powers of Attorney – the risk is that your spouse could apply to VCAT to be appointed as your guardian and administrator.

The takeaway here is to make or change these documents now to ensure you appoint people you trust to assist you and that you funnel your Estate to your preferred beneficiaries.

It is equally important that you:-

Expedite your property settlement and sever any jointly held property that may pass automatically to your spouse on your death.

Review any superannuation and/or life insurance policy nominations you may have made. Superannuation does not automatically form past of your Estate or follow your Will and you should consider making a binding death nomination.

Get in touch so we can help you target all areas – (03) 9752 2388 / [email protected] / send us a message here, on IG, anywhere!

We’re all extremely time poor these days.

Our to – do lists stretch over weeks and months and before long, creep into next year’s agenda.

There are some things that shouldn’t wait, however. Purely because time may not be on our side.

Take the opportunity now to get your Will and Powers of Attorney documents set up and tick them off your list. You can revisit these documents in future to-do lists as your circumstances - or your mind - may change, provided you have decision-making capacity to make any required changes.

But don’t risk not setting them up in the first place. Because once your capacity is gone, so is the chance for you to establish who should assist you to make financial and medical decisions when you cannot do so for yourself and who should receive your assets and belongings when you die.

Have your say today, otherwise a Tribunal may decide who dabbles in your financial and medical choices and State/ Territory legislation may decide how your Estate is divided on your death.

We make the process extremely easy – get in touch on (03) 9752 2388 to start the process.

And, if you are time poor, just request our simple form to get you started.

Watch out for friends and family too and share this or tag them to remind them!

From Tuesday this week, victims of domestic violence may be eligible for a one-off $5,000 payment to assist them to re-establish themselves in leaving their abusive partners. The payment is intended to assist with the hurdles and (at least the financial) associated concerns in leaving an abusive relationship. Uniting Care Australia will facilitate the process.

The assistance is not considered taxable or reportable income and this will be a two-year trial.

To be eligible, a victim must establish financial stress and evidence of domestic violence (ie referral from a family and domestic violence service provider with a risk assessment and safety plan, an Intervention Order, court Order or Police report).

SafeSteps reports that in Australia, approximately 1 in 4 women (23% or 2.2 million) have experienced violence by an intimate partner since the age of 15. More than two-thirds (68%) of mothers who had children in their care when they experienced violence from their previous partner said their children had seen or heard the violence.

As family lawyers, we understand how domestic violence clients may feel stuck in the ‘too good to leave too bad to stay’ cycle when considering financial hardship on the one hand, and providing for their children’s needs and securing a roof over their head on the other.
This may go some way towards addressing the barriers to leaving an abusing relationship.

Read further here: https://bit.ly/2YUTwur

📌 We have joined the land of Instagram 📌

Be sure to add us to your scrolling to keep up to date!

https://www.instagram.com/ross_legal/

Did you know we can store your precious, original documents like your Will, Powers of Attorney, important signed Agreements or Certificate of Title in our Deeds?

This provides you with:-

* Peace of mind that the documents are safely kept and protected from any fire or other disaster;

* No panic in the case of emergencies resulting in the hot flushes of, "Oh no where did I put my ...?" If you urgently have to use a Power of Attorney or provide the original Certificate of Title, this can be a nightmare!

* No panic for your Estate/ loved ones on your death in trying to locate important documents through your papers at home. Some people are extremely organised so this won't be an issue, but for most of us life gets in the way and we may see a loose paper every spring clean or so. There are ramifications as to an important document such as an original Will, going missing or being 'lost' upon death. This can create problems and increased costs for your Estate in trying to rebut the presumption that because it's missing, it must mean you voluntarily and intently destroyed it.

* It is handy to refer family or those you have entrusted with specific roles such as your executor or attorneys, to our firm, where they will find your original documents, in case the documents need to be used. One less thing to worry about.

As a client of Ross Legal, we offer this service to you free of charge.

In the event our practice is sold or relocates, we will contact you at your last known address to advise you. It is therefore important that you let us know of any change to your address or other contact details.

If we cannot reach you, the Law Institute of Victoria retains records of all law firms' movements and you will be able to track down the location of your documents.

Today is a good day as any to consider:-

1. Whether you have an existing Will and Powers of Attorney;

2. If you do, whether they are still relevant and contain your present circumstances, wishes and intentions;

3. Whether you have made an appropriate nomination with your superannuation fund and if so, whether that nomination would still be deemed to be valid.

We can help you to make, or update your Will, Codicil, Enduring Power of Attorney (financial), Appointment of Medical Treatment Decision Maker or any other relevant document you may require.

Please do not hesitate to contact us for a friendly chat:
(03) 9752 2388 / [email protected]