After I pass away, will my assets still go to my children if my partner re-marries?

Having worked with numerous clients on wills and guardianship cases, Nas Hanafi is familiar with the particulars of these legal situations and knows what steps need to be taken so that clients can successfully pass on their material possessions to the intended recipients.

Drafting a Will might not always represent the client’s intentions completely, so it is essential to work with a professional solicitor who can cater for the needs of the Will’s author and the intended beneficiaries.

A common example is when a married beneficiary mentioned in the Will receives assets, but then he or she passes away after the testator. In this case, the surviving spouse may be able to receive the assets. Should the surviving spouse get married again, then the new partner of the surviving spouse could receive the assets before the grandchildren do. This might not be what the initial testator had in mind!

An effective way of preventing such situations from occurring is by implementing a testamentary trust into the Will. With this trust, you can seek to ensure that, after you pass away, your assets will go exclusively to your children and grandchildren, without including their spouses or their spouses’ new partners. Nas Hanafi has successfully implemented many testamentary trusts and can offer you professional guidance in this regard.

To contact Nas Hanafi from Lion Legal, please call (02) 9251 2722.

What should I check on the contract before I exchange it?

Firstly, you should seek proper legal advice for your particular contract.  However, generally:

1.      At the time you pay your deposit and exchange contracts, you MUST receive a contract signed by the vendor.  Ask the real estate agent to verify for you that it is in fact the vendor’s signature, as the vendor does not have an identity or an address in Australia known to you.  Do not be pressured by the agent to simply accept it.

 

2.      Is the property being sold with vacant possession?  The contract does not mark the “Vacant Possession” box?  Do you know if there are tenants in the property?  If you want to move in on settlement, the Contract should be marked “Vacant Possession” and the agent should notify the tenants to vacate.

 

3.      Is there a cooling off period? If you are required to provide a Section 66W Certificate, there is no cooling off period. This means you are bound by the contract when you sign it.

 

4.      What is the deposit marked on the contract? Even if you negotiated with the agent to agree to a 5% deposit, if the contract states a 10% deposit, the vendor will be entitled to call on the full 10% deposit if you breach the contract.

 

5.      Is the property being sold with blinds, built in wardrobes, dishwasher, fixed floor coverings, light fittings, a stove, a dryer and air conditioning etc? The contract needs to be marked according to what is being sold with the property.

 

6.      Make sure you get confirmation from the agent that GST is not payable on top of the purchase price.  Get the agent to mark the appropriate box at the bottom of the front page.

 

7.      Is the Contract subject to Land Tax?  Make sure you get confirmation from the agent that Land Tax is not payable on top of the purchase price.  Get the agent to mark the appropriate box at the bottom of the front page.

 

8.      You must ensure that you have your finance in order well before settlement.  Speak to your lender now if you have not already.

 

9.      You generally buy the property as is, in its present condition, and cannot make any claim as to any defects.  You cannot rely on anything the vendor or the agent have told you or written to you about – in short, if it is not mentioned in the contract, it’s not binding.

 

10.  Check the Planning Certificate for permissible uses of the property.

 

The above are not the only considerations. If you require any information in relation the above, please give Nas Hanafi of Lion Legal a call on (02) 9251 2722.

 

What are the types of Assault?

Assault can fall into the following three categories: assault, common assault and assault occasioning actual bodily harm (ABH).

Common assault prosecuted by indictment

Should someone commit an assault on any person, he or she can be convicted and sentenced for up to 2 years imprisonment, even if the person did not suffer from any actual bodily harm as a result of the attack.

The description of ABH, as well as its legal repercussions and penalties are governed by Section 59 of the Crimes Act of 1900.

 

Assault causing actual bodily harm

1) Should someone commit assault on anyone and thus cause ABH can be convicted and sentenced to up to five years imprisonment;

2) An individual will be found guilty of this offence if this individual causes the actual bodily harm in subsection (1) accompanied by one or more other persons can sentenced for up to seven years imprisonment.

What do the changes to the Victims Rights and Support Act mean for you?

Submissions

Under the new Support Act, Applicants are now permitted to file submissions.

 

Further, if you have any material evidence relevant to your claim, you have to file it with the Victims Services Registry. Here are several examples of acceptable material evidence:

  • Evidence regarding any facts about the event or the circumstances under which it unfolded;
  • The applicant’s medical history
  • Medical documents describing the injuries sustained and;
  • Relevant documents describing the applicant’s claim to expenditures

 

 

Support

The new Scheme also provides additional Support, such as:

1) Professional counseling services;

2) Victims may receive financial assistance of up to $5,000.00 for urgent medical needs. This amount will be used to pay for the medical treatment of urgent medical interventions, to restore the victim’s health and wellbeing.

3) Victims may also receive financial assistance of up to $30,000.00 to cover economic losses. This amount will be used by the victim to pay for the economic losses that come as a direct consequence of the act of violence. This financial compensation will be offered provided under the following circumstances:

 a) Victims who have actual evidence of economic losses are eligible to receive up to $20,000;

b) Victims who do not have actual evidence of economic losses are eligible to receive up to $5,000.00 that they can use for out-of-pocket costs;

c) Victims can also receive financial assistance for medical and/or dental services excluding the urgent medical care described above;

d) Victims can receive up to $5,000.00 to cover for legal protocol required to declare the act of violence. This includes giving statements, drafting the impact statement and other such legal expenses.

e) Victims can receive up to $1,500.00 to cover for the damage and/or loss of clothing or personal items they were in possession of when the act of violence took place.

4. Should the act of violence cause grievous bodily harm, the victim is eligible to receive Category C financial assistance.

 

What differs most between the old and new legislation regarding financial assistance is the fact that, in the old Act, victims could receive a fixed sum of money, depending on the type of injury sustained. However, according to the new Act, victims receive a discrete a capped amount, which cannot exceed the numbers established in the Victims Rights and Support Act 2013.

 

Due to the fact that this legislation is subject to change, it is highly advisable that you seek professional legal support to stay up to date with the latest news and receive accurate advice. For any concern or question regarding this topic, please contact Nas Hanafi from Lion Legal at (02) 9251 2722.

Passing away without a will. What does this mean for your spouse?

Every year, many individuals have passed away without a Will i.e. “Interstate” – a legal term where an individual who has passed away without a Will.

On intestacy, a ‘spouse’ is entitled to the personal effects of the deceased, a statutory legacy and one-half remainder (if any) of the estate: Succession Act 2006 (NSW) s 113. The deceased’s children share equally in the remaining half of the residual of the estate.

To be considered as a ‘spouse’, you must fall under the definition of ‘spouse’ in s 104 of the Succession Act 2006 (NSW).

A statutory legacy consists of the CPI adjusted legacy. The CPI adjusted legacy is to be determined by the following formula:

Consumer Price Index number for the last quarter

CPI adjusted legacy =        __________________________________________                x $350,000

Consumer Price Index number for the December 2005 quarter

 

 

If the estate is not sufficient, then the statutory legacy will abate to what is the remainder from the estate.

The spouse’s statutory legacy makes it clear that the spouse has priority in the intestacy laws.

Superannuation

If the superannuation falls within the statutory legacy it may not be available for of distribution. It depends on the terms of the superannuation fund and what instructions the deceased may have provided. The super fund’s trustee may be able to shed some light on this.

There is no guarantee that making an application to the superannuation fund will result in you receiving a share of the deceased superannuation. The trustee of a super fund generally has discretion as to distribution in the absence of a nomination by the deceased. However, by making an application to the superannuation fund you place yourself in a better position to receive a share if one is forthcoming.

 

If you have any questions or require any information in relation to the above, please feel free to give Nas (Nasir) Hanafi from Lion Legal a call on (02) 9251 2722.

We’ve just bought a house – What happens next?

 

If you have just bought a house or unit, your conveyancer or solicitor has probably congratulated you and told you that you’ve “settled.” However, not everyone knows what happens immediately after the “settlement.”  The following is usually what occurs, largely, without you needing to be troubled by it (except for some things, as noted below).

 

Registration of Transfer and Mortgage

The Certificate of Title for the property (or the “Deeds”) and the Discharge of Mortgage (if the person from whom you bought the place had a home loan) and the Transfer(the document required to change the ownership) are received by your solicitor or conveyancer, and taken to the Land and Property Information Office (“Department of Lands”), to register them against the property.  If you had taken out a loan to buy the property, your bank or lender will also seek to register their Mortgage to secure your loan. Registration usually takes about a week and the Certificate of Title will be returned to you, or to your bank or lender following registration.

 

Rates Notices

The Land and Property Information office will notify your Local Council and Valuer General of the sale upon lodgement of the Transfer for registration and in future, rate assessments and notice of valuation should be sent directly to you or to an address nominated by you.

 

Settlement Figures

The purchase price, water rates, council rates, strata levies (if an apartment) are all adjusted so that the seller pays for those charges up to an including the date of settlement, and you pay from the day following settlement till the end of the rating period .

Details of the various rate adjustments are shown on a “settlement adjustment sheet.”  Feel free to ask your conveyancer or solicitor for a copy.

 

Insurance

You should ensure that you have insured your property from the date of settlement.  You may also want to consider a suitable contents policy as part of the insurance.

If you are required any information in relation the above, please give Nas Hanafi of Lion Legal a call on (02) 9251 2722.

I have a caveat on my property. What do I do?

 

A caveat is a form of statutory injunction provided for under the Real Property Act 1900. When a Caveat is lodged at LPI (department of Lands), it can hinder the registration of any other dealing relating to the above property such as a sale, lease or mortgage, until the Caveat is formally withdrawn.

If you wish to remove the Caveat, you need to:

  1. Prepare a Notice requesting the Caveat to be removed and;
  2. Serve this Notice on the party that has lodged the Caveat or their legal representatives.

 

When this Notice is served on the other party, the other party can choose to continue to protect their claim in your property by responding to the Notice within 21 days by:

(i) obtaining an Order from the Supreme Court to extend the operation of the Caveat; and

(ii) lodging the Order with the Registrar-General

If the party requesting the caveat do not follow the above course, once a Notice to remove the Caveat has been served, the Caveat will lapse.

 

If you require any information in relation the above, please give Nas Hanafi of Lion Legal a call on (02) 9251 2722.

 

 

 

How can I divide my property between my family members?

Property Settlements are governed by the Family Law Act 1975 (Cth), (‘the Act’), and based on the value of the property involved, your matter will be handled by either the Family Court of Australia, or the Federal Circuit Court.

You can choose to divide your property using the following methods:

  1. An informal agreement;
  1. Binding Financial Agreement; and
  1. Consent Orders pursuant to section 79 of the Act.

 

Informal Agreement:

Informal agreements can be made without the involvement of the Court.

However, both parties can file an application for a property settlement in the 12 months following the divorce. The Court may overturn the agreement if it is not deemed to be just and equitable to both parties, and if either party involved did not obtain independent legal advice.

 

Binding Financial Agreement: 

A binding financial agreement deals with how the marital property will be dealt with, and/or, can be an agreement as to the maintenance that either spouse may receive. It is only binding on the parties if both parties have received independent legal advice prior to the agreement being signed.

 

Consent Orders pursuant to section 79 of the Act:

The Family Courts provide for the option to apply for Consent Orders, which are essentially financial agreements that have been formally approved by the Court.

 

Prior to hearing an application for Orders, the Family Court insists upon parties fulfilling ‘pre-action procedures’, including attending dispute resolution. Whilst pre-action procedures are not a requirement for an application to be heard in the Federal Circuit Court, it too, will often order that parties attend dispute resolution. It is only following pre-action procedures, that an application for consent orders may be filed.

 

In considering an application for Consent Orders, the Courts will generally adopt the following four-step approach:

 

  1. Value Assets:

In order to divide the property, it is first necessary to identify the property that will form part of the marital pool of assets, and to ascertain its value. The Court has defined the term ‘property’ widely, encompassing real property, as well as liabilities and financial resources. It includes, but is not limited to:

  1. Any properties owned;
  2. Cars and/or other vehicles;
  3. Jewellery;
  4. Furniture;
  5. Bank accounts;
  6. Shares;
  7. Loans;
  8. Superannuation; and
  9. Liabilities, i.e. any debt.

 

Property owned individually, or acquired through the marriage will be considered as forming a part of the pool of assets. The Court also makes no distinction between marital and business assets.

 

  1. Value Contributions:

Then the Court considers the following:

  • Direct/indirect financial contributions made to the acquisition, conservation or improvement of property;
  • Direct/indirect non-financial contributions made to the acquisition, conservation or improvement of property;
  • The contribution to the family as homemaker and/or parent.

 

Generally, the Court considers the overall contributions that each party has made to the property as a whole, and on that basis, establishing an estimate of the property division.

 

Contributions, both past and present are considered, and, real estate, personal property, payments for renovations or maintenance, and the domestic activities of each party to the marriage, are all relevant.

 

  1. Assess Needs:

Then the Court will assess the needs of each party and decide if spousal maintenance or child support should be paid.

In addition, the future needs of the parties are assessed based on:

  • The age and health of the parties involved;
  • The income and financial resources that each party has at their disposal, as well as their capacity to find future employment;
  • Whether the parties have any commitments or responsibilities that are necessary to support themselves, a child, or others whom they may have a duty to maintain;
  • Whether either party is eligible for any pension or allowance;
  • What a reasonable standard of living would be, in the circumstances;
  • Whether any maintenance payment will enable the other party to undertake education or training, or have any effect on a creditor’s ability to recover their debts;
  • Protection of a party who wishes to continue their role as parent;
  • Financial circumstances relating to either party living with another person;
  • Any other fact or circumstance that ‘the justice of the case requires to be taken into account’.

The estimate of the property division may then be adjusted accordingly, to account for any disparities in the parties’ positions.

 

  1. Considering the Result:

An order cannot be made unless the Court deems it to be just and equitable.

 

It is important to note that the Courts have wide discretion in dealing with family law matters and will decide each matter on the basis of its individual facts.

 

 

The above are only a general statements and you should seek legal advice suitable to your situation.  Please feel free to give Nas Hanafi of Lion Legal a call on 02 9251  2722 to discuss.

What is case management?

Regardless of the legislative power used in Court, or the discretion exercised, it should be generally acknowledged that the main purpose of a legal action is to solve the issue or issues in contention. This is not only prescribed on the judge, but also on the parties who are seeking the outcome to their legal problems.

In the 21st century, justice should be accessible to everyone, in terms of costs and time, which means that there cannot be any meaningful results if the costs are burdensome and the duration of the trial is too long. Dispute resolution should be just, cheap and quick, with these aspects being interconnected since they all contribute to the achievement of a better legal system. They complement each other, and represent the modern definition of justice.

A solicitor from Sydney, Nas Hanafi, highlights that the main role of the Court in civil matters is to find out the truth and establish the rights of the parties, not to punish or correct them for their mistakes.

If a party is seeking legal action, then case management practices should not impinge the party’s rights, but if a prejudice has been caused, the other party must compensate by costs. Case management has been introduced to support justice and Court decisions, not to replace them. For some people, case management used to represent a threat for justice. Similarly, a quick and cheap trial may not always be the same as a just trial, which leads us to the idea that case management should be applied as long as it does not affect the correct application of the legal process.

Nas Hanafi also states that starting with the 1980s, Australia and other western democracies have started to implement political and economical strategies, which focused on the efficient allocation of resources. In terms of financial changes, this meant deregulation and privatization, connecting productivity and funding and pricing public resources. As a result, there has been a push for efficiency, and the public expects more in a shorter period of time, for lower prices.

Justice French once stated that the power of the Courts is granted by the public law. The Court should not fulfil the wishes of the parties at the expense of the public interest.  The Court should ensure that the parties do not ask for something which will jeopardize the public interest. For this reason, legal action is taken not only to favour one party, but also to create a frame for future litigants and does not concern only the rights of the parties involved in a case, but also the public realm. The fact that justice should be quick and cheap does not eliminate or diminish the fact that there are thousands of other parties waiting for a resolution to their issues, which is why justice must be aware that its resources are limited, and a costly and long trial affects not only the parties involved, but also those who are waiting in line to access justice.

After case management started to become popular, there were some changes in the relationships between the advocates and the judges. Years ago, judges had a more passive role and advocates were more autonomous when managing a case, but nowadays, the judges are the ones controlling the use of Court time, as a means to achieve just, quick and cheap resolution. This power is guaranteed by the UCPR and the parliament. Furthermore, the costs of a trial have increased, compared to other public services and due to the complexity of legislation and factual disputes; parties must be managed by an entitled authority. Case management has appeared as a result of the current reality (limited resources, litigious society and Court lists) and has developed so much that no procedure can deliver justice if it is devoid of it. This means that case management is no longer an optional term and it does not have a supportive role, but it has become a synonym of justice.

As far as the efficient use of resources, Nas Hanafi says that a trial should be just, quick and cheap – the three aims which should act as a whole for the success of a case and for the right resolution, not only for the parties involved, but also for the public.

 

For further information call Nas Hanafi on (02) 9251 2722

Can my employer see my past criminal convictions?

A conviction is “spent” upon the expiration of a “crime free period” of ten consecutive years following a conviction for an adult offender pursuant to s8(1) Criminal Records Act 1991 (NSW).

 

A spent conviction stays on your record but the Police will not release the conviction to anyone.  For example, if someone does a criminal history check on you, they will not see the spent convictions.

 

There are however, exceptions to this for certain offences as follows:

  1. A sexual offence;
  2. Prison sentence of 6 months or over; and
  3. Convictions imposed against a body corporate, that is, a company.

 

Thus though the record in fact still remains attached to your history as a person, it is not revealed to people checking your history, subject to certain exceptions above.

 

If you require any information in relation the above, please give Nas Hanafi of Lion Legal a call on (02) 9251 2722.