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Death Duties Qld: Do You Know Enough To Help Your Family?

katie@kmblegal.com.au (Katie Chan) — Sat, 23 Jul 2022 08:07:58 GMT

Death Duties QLD: Do You Know Enough To Help Your Family?

The worst time to learn about death duties is after a family member has passed and you find yourself jumping through emotionally draining legal hoops.

It is good to speak with a professional who can help you with estate planning. This can make the process easier for your family. Whether you are finalising a will or are an executor considering professional advice, we can help you learn about death duties Qld.

We know how emotionally charged these times can be. Our boutique law firm is qualified and experienced in handing Family Law matters. We can help you from estate planning to the final distribution of estates.

If you have general inquiries about probate, want some expert advice before making important decisions, or need assistance with filing a final tax return, we are here for you.

We understand that finding the proper representation is costly and that legal matters are sensitive. We always prioritise our clients, paying special attention to your specific circumstances and financial situation.

It is well worth the expense to have a personal representative that can advocate for you. We will work tirelessly to find solutions that protect your best interests and finances.

We have decades of experience working with the Queensland community. With our assistance, you won’t have to worry about local laws and taxes on your own. We will cover the legal side of things so that you can pay attention to your family's needs and have time to adjust to changes.

In this article, we will cover what you can expect from death duties in Queensland, Australia. Even though you do not need to worry about inheritance tax in Australia there are still other taxes and obligations to prepare for.

Let's look into them below.

Death Duties In Queensland: What Are They?

There is no death tax or inheritance tax in Queensland. The Fraser government abolished them in 1979.

However, there are a few other taxes that need settlement after a person’s death.

Federal and state taxes like capital gains tax and transfer duty can affect the distribution of your estate. When a person becomes deceased, the taxes owed become payable regardless of where the person lived, or where they died.

The good news is you can get help to minimise any taxes related to your assets and the effect they may have on your beneficiaries. If you seek professional advice, please reach out to us for help with estate planning strategies. A solid strategy can make the distribution of your estate much smoother.

Inheritors and Wills

Inheritors, or beneficiaries, are the people who benefit from the deceased’s estate. Beneficiaries are usually named within a will.

In Queensland, if a person dies intestate or without a will, then their assets get distributed according to the Queensland Government’s Succession Act 1981 .

Most often, the deceased’s next of kin will receive the assets of the estate. However, this is not always the case. Finalisation of an estate usually takes up time and money when there are no instructions left behind. Having a will in place can avoid unnecessary court fees and delays.

There are no inheritance taxes in Australia. But beneficiaries still may need to pay some other taxes. This depends on what they receive from the estate and their relationship to the deceased person.

An executor is a beneficiary responsible for carrying out the wishes put forth in a will. The Australian Taxation Office recognises an executor as a legal representative of the deceased person’s estate. Therefore, they can contact the ATO for all tax-related matters when managing the estate.

Assets cannot be distributed until all of the taxes and debts are determined.

The executor has to take care of several other things as well. They include things like:

Informing banks of the death that occurred
Locating assets and determining their value
Paying debts and funeral expenses
Taking care of tax returns
Distributing the remainder between beneficiaries

Spouses or other beneficiaries may have difficulty dealing with the deceased estates if they are not expressly named an authorised contact.

This is why it is best to meet with estate lawyers to draft a will and complete estate planning while you are still making decisions for your family. Having a plan in place now can save your loved ones time, money, and emotional stress.

Capital Gains Tax

A capital gain is the difference between the cost of an asset when initially purchased and the profit or loss amount from when the asset sold.

If beneficiaries choose to sell assets from your estate then capital gains tax may apply to the sale of the assets.

This is not an uncommon situation. Oftentimes, family members inherit homes from loved ones while already owning a home. If they decide to sell the inherited property then they can be responsible for paying the applicable taxes.

You can choose to gift a property to your heirs. Or, you can choose to sell it at market value and divide the proceeds between beneficiaries. If your will directs the sale of a property upon your death it will be considered a capital gain event. Your estate will be liable for any applicable tax.

Some conditions qualify for exemptions. For example, an exemption will apply if the property is your primary residence. Or, if the beneficiary disposes of its ownership interest of the property within two years of your death.

A Note on Superannuation Funds

If you have been saving for retirement with a superannuation fund , this generally gets dealt with separately from the rest of your estate.

Normally, your super and any of the accompanying insurance benefits get paid out to your nominated beneficiary.

If you do not nominate a beneficiary, the trustee of your provider may decide which dependents the benefit goes to. Or, they can make a payment to your executor to distribute in accordance with your will.

If you do not have dependents, it will then get paid to your estate and will be dealt with according to your will.

Your executor will need to know that you had superannuation benefits and find out the details of your fund to be able to distribute it properly. If you do not provide this information, they may need to contact your last employer to get the details they need.

The tax on a super death benefit depends on several things. There can be tax-free and taxable portions of the benefit.

You do not need to pay any taxes on the tax-free portion of your super. You can take it in a lump sum or receive it as an account-based income stream. But you do need to include the tax-free component in your assessable income. It will be taxed at your marginal rate.

Dependents of the deceased do not need to pay tax on the taxable component of the death benefit if they receive it as a lump sum. They do not need to include it on their tax returns as income.

But if dependents receive a death benefit as an income stream then they will need to pay the appropriate taxes.

This can get extremely complicated. The tax rates depend on the age of the deceased and the age of the beneficiary, the type of superannuation fund, the effective tax rate, and more.

You can speak to a professional to get assistance with accessing and distributing your superannuation benefits. They can help you set things up in a way that is best for your beneficiaries.

State Tax

Both federal and state tax may apply to the property and assets of a deceased person.

Even after death, there is an obligation to pay the deceased estate tax for the ordinary earnings and investments they made while alive. A final tax return is required for any tax withheld on income within the year a person passes away.

There may be other obligations as well, like if you were a sole trader or operated a business.

If you have any special circumstances like the above that make estate planning complicated it may help to seek professional advice that can help you prepare. This way, you don’t have to worry about passing on obligations to family members.

Our lawyers can discuss your personal situation and identify what kind of obligations you may have. We can also help you outline a strategy to take care of these responsibilities with little stress and low cost.

Land Tax

Land tax is a state tax calculated every year. Land taxes go towards providing government services and infrastructure for Queensland residents.

Anyone owning dutiable property in Queensland is responsible for paying land taxes.

All freehold land is dutiable property eligible for land tax. This includes vacant land, land that is built on, lots, in group title plans, and more. If you own land jointly then the taxable value of the land gets divided amongst owners based on the value of each share.

The tax rate that applies to your situation depends on what type of owner you are. It will also depend on the total taxable value of the land, and if any exemptions can apply.

A land tax may apply to land held in a deceased estate. It is important that you or the administrator of your estate obtain a land tax clearance certificate before transferring any property to a beneficiary.

This will confirm that the land tax is up to date and the property is clear of any previous land tax assessments.

A reassessment may take place when certain events occur, like when land records change. A reassessment can increase or decrease your liability. You can always discuss this with a professional beforehand to see how a reassessment might affect your estate.

Transfer Duty

Transfer, or stamp duty, applies to the transfer of property from an executor. It is a tax on the sale of property. It generally goes towards the cost of changing the title of the property and updating the ownership details.

It is calculated on a sliding scale, so the more expensive the home, the more expensive the stamp duty will be.

An exemption may be available where the executor is transferring the land to reflect a beneficiaries interest under the will. Beneficiaries can apply for a transfer tax exemption if they are receiving property from a deceased person's estate. The application must be made following the will or the Queensland rules of intestacy if there is no will.

But if your will directs the sale of the family home for the benefit of your children it is a dutiable transaction. Therefore, no exemptions will apply.

For example, if the home sells with the profit going to the beneficaries then whoever buys the house will have to pay the transfer tax. It doesn’t matter if it is another family member who completes the purchase.

KMB Legal Is Here for You

When you choose to work with the KMB legal team, you are choosing a friend who can help you through some of the most challenging situations in life.

We value your time and money. We realise that dealing with legal matters can be some of the most anxious times of life.

We have experience working with small family-run businesses to large enterprises. We can help you make a plan for executors dealing with considerable assets to understand what is going on and make the best decisions for the family.

KMB legal offers high-quality service to the Gold Coast community and keeps the financial impact low for our clients. We combine traditional and modern legal approaches to offer one-of-a-kind customer service that achieves strong results.

If you are estate planning and considering death duties we are able to help with the entire process. Even though your beneficiaries will not need to pay inheritance tax they will face capital gains, transfer duties, and other obligations when settling your estate.

To fully understand how KMB legal can help you navigate death duties, contact us for a free phone consultation .

FAQ

Do you have to pay Death duties in Queensland?

No, you do not have to pay Death Duties in Queensland. Death duties, or inheritance tax, have not been collected in Australia since 1981.

There are, however, several other taxes that may impact inheritances.

Is transfer duty payable in a deceased state?

No, transfer duty is not payable in a deceased estate. Heirs and beneficiaries are exempt from paying transfer duties.

If the property is inherited from a deceased estate, it does not matter what the relationship was. It also does not matter if the deceased dies with or without a valid will.

How is a deceased estate distributed?

A deceased estate is distributed based on the will left behind. Wills normally name beneficiaries who are to inherit the estate.

An executor is a person appointed by the deceased to administer their will. An executor will make sure all debts and taxes owed get paid, and the assets are divided up according to the deceased’s instructions.

If there is no will, then the estate will be distributed based on the regulations outlined by the Succession Act (Qld) of 1981 if there was no will.

Are bank accounts frozen when someone dies?

Yes, banks and financial institutions will freeze the accounts if the owner of the account dies. They will only do this if the deceased is the sole account owner. It is to prevent any further transactions and protect the estate.

Any joint bank accounts continue with normal operation.

What debts are forgiven at death?

Debts are not forgiven at death. There is an obligation to pay back any debts, even after death. Taxes owed by the deceased person on earnings and investments made during the year of the death will need to be paid after death.

Do children inherit debt?

No, children do not inherit debt. Debts are paid out from the estate before any children or other members of the family inherit anything.

The children will inherit what remains of the assets after debts are settled. They will be used to satisfy outstanding debts instead of remaining in the estate and passing along through inheritance. This means that if the debt is not paid before it is time to execute a will, the children can lose out on assets.

Who pays for a funeral if there is no money?

The Department of Justice can help pay for a funeral for someone who died without any next of kin or ability to pay for a funeral. There is a Funeral Assistance Scheme that can be applied for.

They pay the upfront costs of the funeral if you qualify for the scheme.

You may also be able to use superannuation death benefits to pay for funeral and testamentary debts. They have protections from covering other kinds of debts but can pay for the funeral expenses.

What happens to a house when the owner dies without a will?

When the owner of a house dies without a will, the house will go to the next of kin pursuant to the Succession Ac t (Qld) 1981.

The first in line is a spouse or de facto partner. Then the children or grandchildren.

If you have children, then $150,000 and the household chattels will go to your spouse and half (or a third depending on the number of children) of the remaining estate. Your children will receive the remainder.

After that, the order goes from the grandchildren, deceased’s parents, siblings, nephews, nieces, grandparents, uncles, aunts, and lastly, cousins. There is no provision for distributing property past first cousins.

Are siblings responsible for siblings' debt?

No, siblings are not responsible for another sibling’s debt. A family member is only responsible for paying another family member’s debt if specific conditions apply.

If you own an asset that has been used as security for your sibling’s debt, then you can be responsible for the debt. If you are a joint borrower with your sibling you may also be responsible. Or, if you have guaranteed your sibling’s loan then you will be responsible for the debt.

Commercial in Confidence: All you need to know

katie@kmblegal.com.au (Katie Chan) — Wed, 08 Jun 2022 13:14:47 GMT

Commercial in Confidence: All you need to know

It is said that knowledge is power, and nowhere is this truer than in the business world. In today's competitive marketplace, companies are constantly striving to gain an edge in a very competitive economy. One way they can do this is by keeping their plans and strategies secret.

This is where commercial in confidence comes in. By legally protecting information such as business plans, product designs, sensitive financial information, and marketing strategies, businesses can make sure that their business affairs stay private.

Commercial in confidence is any information that could give a business an advantage over its competitors. When businesses share commercial in confidence with others, they typically do so under strict non-disclosure agreements that forbid the recipient from disclosing the information to anyone else.

Violating such an agreement can lead to serious consequences, including legal action and financial damages. Consequently, businesses must be very careful about whom they share commercial in confidence and under what circumstances.

Types of Business confidential information

There are three main types of business confidential information in Australia.

Financial information

This includes information relating to a company's financial position, performance or prospects. It can include balance sheets, profit and loss statements, and cash flow projections.

A company's financial information is a critical part of understanding its overall health and performance. Financial statements can provide insights into a company's overall financial position, as well as its performance over time.

They can also be used to compare a company's financial situation to that of its peers. Understanding a company's financial information can help investors make more informed decisions about whether or not to invest in the company.

Product information

This includes information about a company's products or services, such as pricing, design, production methods and marketing plans.

A company's product information is a vital part of its marketing strategy. This information will eventually help potential customers to understand what the product is and how it can benefit them.

Product information can also help to differentiate a company's products from its competitors.

Personnel information

This includes information about a company's employees, such as skills, training, experience and salaries.

Personnel information is a crucial component of any business. This type of information can help a company to assess the skills and training of its employees, as well as their experience and salaries.

This data can be used to make decisions about hiring, promotions and raises. In addition, personnel information can be used to identify potential problem areas within a company.

For example, if a high proportion of employees are leaving after a short period of time, this may indicate that there are issues with the company's culture or training program. This information may be misused in the wrong hands, and hence is important to keep it under wraps.

As a business, you will undoubtedly have information that you need to keep confidential. This could be anything from your company's financial records to sensitive customer data. safeguarding this information is vital to the success and security of your business.

How do you safeguard confidential information?

There are a number of ways you can safeguard confidential information, including:

Encrypting files and storing them in a secure location

When it comes to security, there are often multiple layers that can be employed in order to better protect sensitive information. For example, encrypting files and storing them in a secure location is one way to ensure that only authorised individuals have access to the data. While this may seem like a fairly straightforward process, there are actually a number of factors that need to be taken into account in order to ensure the security of the data.

The encryption method that is used needs to be strong enough to resist brute force attacks.
The key that is used to encrypt the data needs to be properly managed and stored in a secure location.
The data itself needs to be stored in a location that is not easily accessible by unauthorised individuals.

It is possible to create a very effective security system for protecting sensitive data with encryption. In addition, you can take measures to control who has access to confidential information, such as restricting access to certain individuals on a need-to-know basis.

Password protecting access to important files and systems

In today's world, cybercrime is a real and growing threat. Hackers can gain access to important files and systems, causing serious damage. As a result, it is more important than ever to password protect access to important files and systems.

By using strong passwords that are difficult to guess, you can help to prevent hackers from gaining access to your data. In addition, you should also keep your passwords confidential and change them on a regular basis. By taking these steps, you can help to keep your data safe from cybercrime. This also helps you keep track of what you are sharing in commercial in confidence, as you may have to share passwords temporarily.

Draw strong contracts

If you absolutely have to share information, make sure you draw iron-clad contracts first with proper confidentiality clauses. When it comes to safeguarding commercially sensitive information, there are a few key things to keep in mind.

First and foremost, always use a nondisclosure agreement (NDA) when sharing confidential information with another party. This will help ensure that intellectual property remains protected and does not end up in the wrong hands.

Another important thing to remember is to limit the amount of information that you share with others. Only share what is absolutely necessary and make sure that all confidential information is stored securely. Always be careful when discussing confidential information in public or online, as it can be easily overheard or seen by others.

Restricting access to certain areas

In many organisations, there is a need to restrict access to certain areas or information to only those who need it. This can be for security reasons, to protect commercially confidential information and intellectual property or to prevent unauthorised personnel from causing harm.

There are several ways to achieve this, such as using physical barriers, locking doors, or using security cameras. Another option is to use software-based controls, such as password-protected files or user accounts with limited permissions.

Whatever the approach, it is important to have a clear and well-documented policy in place so that everyone understands what is allowed and what is not.

Ensuring that all staff are aware of their responsibility to keep the information confidential

In today's world, information is one of the most valuable commodities. Whether it is customer data, financial records, or trade secrets, businesses go to great lengths to protect their information.

One of the most important ways to protect confidential business information is to ensure that all staff are aware of their responsibility to keep information confidential. By making sure that all employees understand the importance of confidentiality, businesses can help to create a culture of discretion and security.

In addition, businesses should have clear policies and procedures in place to ensure that information is only shared on a need-to-know basis.

Implementing these measures will help to protect your confidential information from being accessed by unauthorised individuals.

If you have any questions about safeguarding confidential information, or if you need assistance in implementing any of the measures listed above, please contact our team of experts. We are always here to help with our legal services.

Establishing a confidential agreement

A confidentiality agreement is a legally binding contract between two or more parties, in which the parties agree to exchange confidential information and keep it secret. The confidential information may be any type of information, including trade secrets, business plans, financial information, or other sensitive information.

In Australia, a confidentiality agreement (also called a non-disclosure agreement or NDA) is a legally binding contract between two parties in which one party agrees to not disclose information that may be considered confidential.

The purpose of a confidentiality agreement is to protect sensitive information from being made public. This type of agreement is often used when businesses are seeking to protect their trade secrets or other proprietary information. Confidentiality agreements can be either written or oral, but it is generally advisable to have a written agreement in place so that there is no confusion about the terms of the agreement.

When drafting a confidentiality agreement, it is important to clearly identify what information will be considered confidential and to ensure that all parties understand their obligations under the agreement.

Components of a Confidentiality Agreement

A well-written confidentiality agreement can help to protect your business's confidential information and maintain its competitive edge.

In Australia, there are several key components that must be included in a confidentiality agreement in order for it to be legally binding.

The parties involved must be clearly identified.
The scope of the agreement must be defined, specifying what information is to be considered confidential and how it can be used.
There must be a clear expiration date for the agreement.

By including these essential elements, businesses can protect their confidential information from unauthorised disclosure.

Contract clauses

In Australia, contract clauses involving commercial in confidence are common. These clauses are designed to protect confidential information from being disclosed to third parties without the consent of the party who owns the information. A typical clause will state that:

the parties agree not to disclose any confidential information to any person or entity outside of the contract.
the specific type of information that is considered confidential, such as business plans or financial records.

In order to be effective, contract clauses involving commercial in confidence must be clear and concise. They should also be tailored to the specific needs of the parties involved.

When entering into a commercial contract, it is important to protect your confidential information. In Australia, this can be done by including a clause in the contract that requires the other party to keep the information confidential.

The clause should specify what information is to be kept confidential, and how long the confidentiality obligation will last. It is also important to make sure that you have the right to enforce the clause if the other party breaches it.

Otherwise, you may find yourself without any recourse if your confidential information is leaked. Including a well-drafted confidentiality clause in your commercial contracts will help to protect your business interests and give you peace of mind.

Obligation of Confidence

The obligation of confidence is a legal doctrine that prohibits the disclosure of confidential information without the consent of the person who provided the information.

The doctrine is typically used to protect trade secrets, but it can also apply to other types of information, such as sensitive business or personal information.

In the commercial context, the obligation of confidence can arise in a variety of circumstances, such as when a company enters into a nondisclosure agreement with another party. The obligation of confidence can also be implied by the nature of the relationship between two parties, such as when one party provides confidential information to another in order to obtain a business advantage.

Violating the obligation of confidence can give rise to a variety of legal claims, such as breach of contract or defamation.

This protection is typically used in scenarios where one party has shared confidential information with another party in the course of doing business.

The obligation of confidence requires the receiving party to keep the information secret and to only use it for the purpose for which it was intended. As such, it is important for businesses to take steps to ensure that their employees and contractors understand and respect the obligations of confidence.

Duty of Confidence

In the commercial world, the term "duty of confidence" refers to a legal obligation to keep certain information private. This information can include anything from customer lists and marketing plans to manufacturing processes and financial data, anything that could be used to harm your company or give your competitors an unfair advantage.

This duty can arise in a number of ways, but most commonly it is either expressly stated in a contract or implied by law. Under both contract law and common law, an individual who discloses confidential information without authorisation can be held liable for damages.

The duty of confidence is an important part of doing business, and it helps to ensure that sensitive information is not mishandled. By respecting the duty of confidence, businesses can protect their interests and maintain the trust of their customers.

Breach of Confidence

A breach of confidence occurs when someone discloses information that was supposed to be kept secret. This can be devastating to a company, as it can lead to the loss of customers, competitive advantage, and even legal action.

There are many ways to prevent a breach of confidence, such as having strict confidentiality agreements in place, ensuring that only authorised personnel have access to sensitive information, and encrypting all confidential data.

For example, if an employee discloses confidential information about their company to a competitor, this may give the competitor an unfair advantage. Sometimes, former employees violate confidentiality agreements and disclose sensitive information to outsiders.

Conclusion

Commercial in confidence is a legal term that refers to any information a business wants to keep secret. This could be anything from future product designs and marketing plans to sensitive financial information. By keeping this information confidential, businesses can make sure they stay ahead of the competition.

So, what can your business do to protect its confidential information? The best way is to get in touch with a legal team who understands the ins and outs of commercial in confidence.

At KMB Legal, we have years of experience helping businesses just like yours keep their secrets safe. Contact us today for more information on how we can help you.

FAQs

Who has Duty of Confidence?

The duty of confidence can arise in a variety of circumstances, and it is important to be aware of when it applies. The receiver of the confidential information is usually held responsible.

The duty of confidence generally arises when an individual has been entrusted with confidential information by their employer. This could include information about the employer's business plans, strategies, or customers.

The duty of commercial in confidence also applies to any information that an individual has promised to keep confidential, such as trade secrets or proprietary information. In some cases, the duty of confidence may also extend to personal information, such as medical records or financial information.

When can you legally break Confidentiality?

There are situations where confidentiality may be legally broken. For example, if a company is required to disclose information by law or court order, it may be forced to break confidentiality.

Additionally, if there is reason to believe that disclosure is necessary to prevent imminent harm, confidentiality may be broken in order to protect the health and safety of individuals. In general, confidentiality should only be broken in situations where there is a clear legal or ethical justification for doing so. Otherwise, businesses risk damaging their relationships and losing the trust of their clients.

What happens if you break confidentiality?

When you are given confidential information, it is important to remember that this information is not meant for public consumption. If you break confidentiality, you could face serious consequences, including legal action.

In some cases, breaking confidentiality can also lead to a loss of trust, which can damage relationships and make it difficult to do business in the future. When you sign a non-disclosure agreement, you are agreeing to keep information confidential.

If you break this agreement, you could be sued for breach of contract. In addition, divulging confidential information can have a negative impact on the person or company who entrusted you with this information.

They may feel betrayed and choose to sever ties with you as a result. It is important to take confidentiality agreements seriously and to think carefully before sharing any sensitive information.

Can therapists break confidentiality?

In Australia, therapists are bound by confidentiality except in very specific circumstances. These circumstances include if the client is at risk of harming themselves or others, if there is suspicion of child abuse, or if the therapist is ordered to disclose information by a court. In all other cases, therapists must keep information disclosed to them by clients confidential.

This means that they cannot share this information with anyone without the client’s expressed permission. The only exception to this rule is if the therapist believes that disclosure is necessary to prevent serious harm. In such cases, the therapist may choose to break confidentiality in order to contact authorities or take other appropriate measures.

Does confidentiality apply after death?

In Australia, the concept of confidentiality is closely linked to the law of privacy. The law of privacy protects an individual's right to keep their personal information confidential and private. After someone dies, their right to privacy is transferred to their estate.

This means that the executor of the estate has a duty to keep the deceased person's information confidential.

However, there are some exceptions to this rule. For example, if the deceased person has left instructions in their will for their information to be disclosed after their death, then the executor may disclose this information.

In addition, if the disclosure of information is necessary to prevent a crime or protect public safety, then the executor may also disclose this information.

What is the difference between confidential and commercial in confidence?

The terms confidential and commercial in confidence are often used interchangeably, but there is a key difference between the two. Something that is considered confidential is meant to be kept secret, while something that is commercial in confidence may be shared with those who have a need to know.

For example, a company's financial records would be considered confidential, while the existence of a new product line would be considered commercial in confidence.

In general, information that is considered confidential is more sensitive, and its disclosure could lead to negative consequences. As such, it is important to be aware of the distinction between the two terms.

Do you pay tax on inheritance tax in Australia?

katie@kmblegal.com.au (Katie Chan) — Wed, 08 Jun 2022 05:55:48 GMT

Do you pay tax on inheritance tax in Australia?

In Australia, there is no Inheritance tax imposed on a deceased estate in any state. However, there are personal income tax implications if you are a recipient. The rest of this article goes into detail about those tax implications.

What is Inheritance Tax?

Inheritance tax is a type of tax that is levied on the property or estate of a deceased person. The tax is imposed on the beneficiaries of the estate, and the amount of tax owed depends on the value of the estate.

Inheritance tax is typically payable when the estate is worth more than a certain amount, and the rate of tax depends on the relationship between the beneficiary and the deceased. In some cases, inheritance tax may be exempt from taxation, or there may be special rules that apply.

How does inheritance tax work?

In Australia, inheritance tax is not levied on any state or territory. This means that the value of the deceased estate will not be reduced by any taxes. However, there are some tax obligations that you will need to meet depending on the circumstances, like capital gains tax.

For instance, if you inherit cash, shares, property, or gifts, you may still be required to pay taxes on these items. The amount of tax you will owe will depend on the value of the income stream and your personal tax situation. Therefore, it is important to speak with a qualified tax professional to determine what, if any, taxes you may owe on any lump sum gained.

Inheritance Tax Threshold

The inheritance or estate taxes threshold is the amount of money that can be inherited without triggering a tax liability. In Australia, inheritance tax is not taxed, hence there is no threshold. However, leaving behind assets without proper planning will attract taxes of a different kind, like capital gains tax. Here’s how to avoid that.

Factors to consider if you want to minimise your tax obligations

There are a number of things you can do to minimise your inheritance tax. Below are some key factors to consider:

1. Make use of estate planning tools such as wills, trusts and beneficiary nominations.

One of the best ways to minimise the impact of inheritance tax is to engage in proper estate planning. By making use of tools such as wills, trusts and beneficiary nominations, you can ensure that your assets are distributed in a way that minimises taxes.

For example, by placing your assets in a trust, you can designate how they will be used and when they will be distributed. This can help to minimise the amount of tax that will be payable when you die.

Additionally, by designating a beneficiary for your assets, you can ensure that they go to the person or persons you want them to go to, without having to go through the probate process.

2. Take advantage of the generous concessions available for spouses and children.

Tax is a complex and often contentious issue. However, there are a number of concessions available that can significantly reduce the amount of tax payable.

For example, spouses and children are usually exempt from inheritance tax, and there are also significant discounts available for property that is left to direct descendants.

As a result, it is important to seek professional advice when it comes to any tax that you may have to pay due to your inheritance. By taking advantage of the generous concessions available, you can ensure that your loved ones are able to inherit your estate with minimal taxation.

3. Invest in assets which are exempt from tax, such as your family home or primary place of residence.

When tax is levied on an estate, it can have a significant impact on the amount of money that is passed on to beneficiaries. As a result, it is important to consider how to best minimise the amount of inheritance tax that will be due. One way to do this is to invest in assets which are exempt from inheritance tax. These include your family home or primary place of residence.

4. Manage your wealth and investments wisely to reduce the overall value of your estate.

One of the most effective ways to reduce the value of your estate is to manage your wealth and investments wisely. By carefully selecting which assets to hold and how to invest them, you can minimise the overall value of your estate and save inheritance tax.

5. Ensure your affairs are in order and up to date, so there are no surprises when it comes time to pay your inheritance tax bill.

Here are a few things to keep in mind:

Know your tax liability. This will depend on the value of your estate and the relationship of the beneficiary to you. You can use an inheritance tax calculator to estimate your liability.
Make sure your will is up to date. Review your will regularly and update it as needed. This will help ensure that your assets are distributed according to your wishes.
Keep good records. Be sure to keep track of all financial records related to your estate

By following these tips, you can minimise the amount of tax payable on your estate and ensure that your loved ones receive as much of your inheritance as possible. For more information, speak to an estate planning specialist today.

FAQs

Do I have to pay taxes on a $10,000 Inheritance?

The amount of tax you owe will depend on a variety of factors, including your marginal tax rate and whether the money is considered income, otherwise, capital gains tax may be levied on it.

In general, inheritance tax in Australia is not subject to GST, but there are some exceptions. If you have any questions about your tax obligations, it's best to speak to an accountant or tax lawyer.

What is the Seven Year rule in Inheritance Tax?

The Seven Year rule is a rule that states that inheritance tax is only payable if the estate is worth more than seven years' worth of the deceased person's income.

This means that if the deceased person's estate is worth less than seven years' worth of their income, then inheritance tax will not be payable. The Seven Year rule is a complex rule and there are many factors that can affect whether or not it applies in a particular case.

How do you avoid Inheritance Tax?

One option is to give gifts to family members while you are still alive. Another option is to set up a trust fund.

This can be an effective way to ensure that your assets are distributed according to your wishes. Finally, you may also want to consider setting up a life insurance policy. This can provide financial security for your loved ones in the event of your death.

Do I have to declare inheritance money as income?

When it comes to taxes, inheritance money is treated differently than other types of income. Inheritance money is not considered taxable income, so you don't have to declare it on your tax return.

However, there may be some exceptions. For example, if you inherit property that generates rental income, then that income may be taxable. Additionally, if you inherit money that is considered part of a deceased person's estate, then the estate may be subject to estate taxes.

So while you don't have to declare inheritance money as income, there are some circumstances where it may be taxable. Be sure to speak with a tax professional to determine how inheritance money will affect your taxes.

What assets are exempt from inheritance tax?

For example, in the United Kingdom, assets that are left to a spouse or civil partner are exempt from inheritance tax. Additionally, certain charitable gifts may also be exempt from tax. In order to qualify for an exemption, it is important to ensure that all required paperwork is filed in a timely manner.

What happens if you can't afford the inheritance tax

If you cannot afford to pay the inheritance tax, the asset will be sold to cover the cost of the tax. In some cases, this may mean that the asset is sold for less than its market value.

Cease and desist order Australia: Things you need to know

katie@kmblegal.com.au (Katie Chan) — Wed, 08 Jun 2022 04:12:21 GMT

Cease and desist order Australia: Things you need to know

In this article, we take a closer look at cease and desist orders and how they can help you protect yourself and your interests.

What is a cease and desist order?

A cease and desist order is a legally enforceable order used to formally require discontinuance of activities that are deemed illegal, harmful or malicious.

Cease and desist orders may be issued by government agencies and the courts and acts as temporary injunctions before trial. In Australia, this is used to stop parties from carrying out illegal activities on government land or prevent businesses from operating without a license or permit.

What is a cease and desist order used for?

Cease and desist orders are mostly used in the area of intellectual property, specifically with the protection of copyright, trademark or patent from infringement. Other basis for a cease and desist order would be to protect an individual or business from harassment, defamation, or operating a business without a license.

Grounds for a cease and desist order

A cease and desist order can be issued under the following grounds. If any of these behaviours occur, an order for final cease may be issued to protect the victim.

Impersonating a brand

A cease and desist order can be used to protect protected work from copyright infringement. This could include impersonating another business, trademark infringement, using similar branding or engaging in false advertising.

In the context of impersonating a brand or trademark, such an order would be issued to an individual or business engaged in copyright and trademark infringement (e.g. using the name or likeness of the brand without permission) in a way that could confuse consumers.

Non-compliance can be subject to legal action, with the letter acting as a last resort after other methods, such as negotiation, have failed. It is important to note that this is not a finding of guilt, but rather an involuntary order to stop any further copyright infringement.

Actions causing financial harm

In Australia, a cease and desist order may be issued to an individual or company that is behaving in a way that is financially harmful. This order requires the recipient to stop the behaviour immediately and can also impose restrictions on future activities.

Regulatory bodies such as the Australian Securities and Investments Commission (ASIC) can issue these orders. Prompt compliance with this order is essential, as failure to do so can result in significant penalties, including fines and jail time.

In some cases, a court may also appoint a receiver to take control of the company's assets. cease and desist orders are serious legal matters, and should always be handled by experienced legal professionals.

Actions causing physical harm

In Australia, a cease and desist order can be used to stop physically harmful activities including, but not limited to any of the following:

Defamation, Slander or Libel
Stalking
Harassment
Any forms of domestic violence

An order can be issued by a court or by the police. If the person does not comply with the order, they may be arrested and charged with a criminal offence.

Cease and desist letters

A cease and desist letter is a formal legal notice to enforce an individual's request to stop the specified illegal and harmful activities. The letter works as an initial warning and a written notice of possible legal consequences if the sender’s request/s is ignored.

Cease and Desist letters are usually last resort options because opting for court proceedings can be expensive and time-consuming.

In Australia, a cease and desist letter is governed by the Australian Consumer Law. If you believe that someone has breached your consumer rights, you can send them a cease and desist letter asking them to stop the conduct in question.

For example, the Australian Consumer Law prohibits businesses from engaging in deceptive tactics and perpetuating false statements. If a business is found to be engaging in such conduct, the consumer may send a cease and desist letter demanding that the behaviour stop.

Similarly, Australia's copyright laws prohibit the unauthorised reproduction of copyrighted material. If an individual is found to be engaged in such activity, the copyright owner may send a cease and desist letter asking the individual to stop. In both of these examples, if the recipient of the cease and desist letter does not comply with its request, the sender may take legal action.

What should be included in a cease and desist letter?

A cease and desist letter is a formal demand for another party to stop illegal or harmful activities. The letter sets out the specific actions that the recipient must take in order to avoid legal action.

The content of a cease and desist letter will vary depending on the particular situation, but there are some key elements that should always be included. These are:

1. A clear and concise description of the illegal or harmful activity that is taking place

In order for the letter to be effective, it is important that the description of the activity in question is clear and concise. This allows the recipient of the letter to quickly understand the issue and take action to rectify the situation. Furthermore, a clear description of the activity can help to establish a legal basis for the cease and desist letter, making it more likely that the recipient will comply with its demands. As such, when drafting a cease and desist letter, care should be taken to provide a detailed and accurate description of the illegal or harmful activity that is taking place.

2. Demand for the recipient to immediately stop this activity

One of the key components of a cease and desist letter is the demand that the recipient immediately stops the offending behaviour. This is important for a number of reasons.

It makes it clear to the recipient that their actions are not acceptable and that they need to take immediate action to remedy the situation.
It helps to avoid further damage or injury by stopping the behaviour before it has a chance to continue.
It also gives the sender a clear deadline by which the behaviour must be stopped. Without this clear deadline, the recipient might delay taking action, which could further injure the sender or allow the behaviour to continue unabated.

It is essential that a cease and desist letter includes a demand for the immediate cessation of the offending activity.

3. The consequences that will result if the activity does not cease, including legal actions

The mention of potential legal action is often an important part of a cease and desist letter. It underscores the seriousness of the situation and can increase the likelihood that the recipient will comply with the demands. Without this threat, the recipient may be less likely to take the letter seriously and may continue the activities in question.

4. The contact details of the person or organisation sending the letter

The contact details of the person or organisation sending the letter should be clear for several reasons.

It lets the recipient know who they are dealing with and provides a way for them to get in touch if they have any questions.
It helps to establish the sender's credibility and legitimacy.
Including a postal address, email address, and phone number also makes it easier for the recipient to verify the sender's identity if they choose to do so.
Clear contact information helps to prevent misunderstandings or miscommunication between the parties involved.
By providing all of the necessary contact information up front, both sides can be confident that they are on the same page and that there will be no confusion about who is who or how to get in touch if needed.

It is important to note that a cease and desist letter is not a legal document, and it cannot be used as a threat or form of blackmail. It is simply a way to formally request another party to stop the undesirable activity. If the recipient does not comply with the demands of the letter, then the sender may opt to take action through legal proceedings.

What should you do if you receive a cease and desist letter?

If you are a recipient of a cease and desist letter, it's important to know your rights and what you can do next. Here's a quick guide to cease and desist letters in Australia.

Seek legal advice

If you receive a cease and desist letter, the first thing you should do is seek legal advice. cease and desist letters can be complex, and it's important to understand your legal rights and obligations before taking any action.

Get in touch with the sender

Most people associate the cease and desist letter with formal legal action. However, these letters can also be sent as a way to resolve a dispute without going to court. Cease and desist letters are typically sent when someone believes they have been wronged, but they are not ready or able to file a lawsuit.

Consider getting in touch with the sender. This is the best way to identify the problem and work on a resolution without going to court. Often, the sender just wants to know that you are aware of the issue and are willing to work with them to resolve it.

They may not be looking to take to court, but instead just want to stop the behaviour that they believe is infringing on their rights. By getting in touch with the sender, you can try to come to an agreement without having to go through the costly and time-consuming process of litigating the matter.

Make a decision

Once you've sought legal advice, you'll be able to decide whether to comply with the cease and desist letter or challenge it. If you decide to comply with the cease and desist letter, you'll need to stop the activity that's causing the infringement. This might mean ceasing the production, taking down a website or removing content from social media.

If you decide to challenge the cease and desist letter, you'll need to respond formally. This will usually involve writing to the person who sent the cease and desist letter, outlining your grounds for challenging it. Once you've responded, the matter will likely be resolved through negotiation or legal proceedings.

In any case, it's important to act quickly once you've received a cease and desist letter. cease and desist letters can be serious, and ignoring them can result in further legal action being taken against you.

Conclusion

Can I send a cease and desist letter myself?

Cease and desist letters are usually sent by lawyers on behalf of their clients, but there is no law that says you cannot send one yourself. If you choose to do so, it is important to be clear and concise in your letter.

Is it better to have a lawyer send a cease and desist letter instead?

There are a few advantages to having a lawyer or a law firm send a cease and desist order:

It demonstrates that you are serious about protecting your rights and intellectual property.
It puts the other party on notice that they are potentially liable for damages if they continue to engage in the prohibited activity according to business law or otherwise.
In some cases, it may be necessary to obtain a court order before the other party will stop the offending behaviour.

Is a cease and desist letter enforceable?

A cease and desist letter, also called a demand letter, must be carefully drafted to ensure that it complies with legal authority. The court may not enforce a poorly drafted letter. If you are considering sending a cease and desist letter, you should seek legal advice from a law firm to ensure that the letter will be effective.

What happens when someone violates a cease and desist order?

In Australia, cease and desist orders are often used to resolve disputes between parties without the need for litigation. However, if someone violates the order, they may be subject to civil or criminal penalties. Civil penalties can include fines and compensation orders, while criminal penalties can include imprisonment. In some cases, a person who violates this order may also be found in contempt of court.

Defamation of Business Reputation in Australia – How To Recover?

katie@kmblegal.com.au (Katie Chan) — Sun, 29 May 2022 23:06:07 GMT

Defamation of Business Reputation in Australia – How To Recover?

Business reputation is the overall opinion of the public about a company. This can be based on many factors, including the quality of products or services, business practices, customer service, and more.

Defamation of a business is when someone makes a false statement about a company that damages the company's reputation. This can be done through writing, speech, or even gestures.

For defamation to occur, the statement must be false, must have been made to at least one other person, and must have caused harm to the company's reputation. If a company can prove that defamation has occurred, they may be able to recover damages from the person who made the false statements.

Claims for damages are now commonly bought under the guise of injurious falsehood rather than defamation since the statutory abolition of specific corporations being able to sue in defamation. Only companies with fewer than 10 employees for not-for-profit organisations may sue for defamation.

Can a business sue for injurious falsehood?

Businesses can sue for injurious falsehood if they can prove that they have suffered financial loss as a result of someone making a false or damaging statement about them. To win a case for injurious falsehood, businesses must be able to show that the statements were made maliciously and without any justification.

In addition, businesses must prove that the statements caused them financial harm. If a business can successfully prove these elements, they may be awarded damages. However, it should be noted that these cases can be very complex and costly to litigate. As such, businesses should always seek legal advice before taking any action.

5 Elements of an injurious falsehood claim

There are five elements that must be satisfied in order to make a successful injurious falsehood claim in Australia. Let’s keep things short and simple, so that you’re left with clear takeaways that you can easily remember.

The material must have been published. This can include spoken words, printed matter or material published online.
The material must be defamatory, meaning that it would tend to lower the plaintiff's reputation in the eyes of reasonable members of society.
The plaintiff must have been identified in the material.
The defamatory material must have been published to at least one other person.
The plaintiff must suffer damages as a result of the publication. If these elements are all present, then a claim for business defamation may be successful.

Companies that Cannot Sue for Injurious Falsehood

According to the Defamation Act in Australia, there are certain company types that are excluded from taking legal action to defamation. This includes companies that are not registered with the Australian Securities and Investments Commission (ASIC) and companies that are not listed on the Australian Stock Exchange (ASX).

These exclusions exist to protect investors from unscrupulous or fraudulent activity. In order to take legal action for defamation in Australia, a company must be able to prove that it has suffered financial loss as a result of the defamatory remarks. This can be difficult to do, especially for small businesses.

Time Frame to commence proceedings

Court proceedings for injurious falsehood must be commenced within 12 months of the date on which the cause of action against the injurious falsehood accrued. In most cases, this will be the date on which the defamatory material was first published. If proceedings are not commenced within this time frame, the court may refuse to hear the case.

If you think you have a potential injurious falsehood case, feel free to contact our business lawyers for a free consultation.

FAQs

Is it illegal to slander someone's business?

Slander is a type of defamation that occurs when someone makes false or damaging statements about another person. In Australia, it is generally illegal to make defamatory statements about a person or business.

However, there are some exceptions to this rule. For example, statements that are true or opinions that are honestly held by an ordinary reasonable person are not considered to be defamatory. Additionally, some types of public comment may be exempted from defamation law, such as comments made in the course of parliamentary proceedings.

Can I sue someone for damaging my reputation?

Whether or not a defence applies will depend on the specific circumstances of each case. If you believe that you have been the victim of a defamatory matter, you should seek legal advice as soon as possible.

Can you have defamation against a company?

In Australia, defamation law protects individuals and groups from untrue or offensive statements that could damage their reputations. This includes statements made in written form (such as books or articles), as well as spoken statements (such as in interviews or speeches). However, the law does not protect companies from defamation. This is because companies are considered to have a 'legal personality', which means that they cannot be defamed in the same way as an individual.

Can a statement of opinion be defamatory?

The test for whether material is defamatory is whether it would tend to lower the person in the eyes of ordinary members of the community. In determining this, the court will consider a number of factors, including the nature of the material, the context in which it was published and the status of the person who was defamed. Opinions are generally not considered to be defamatory.

What are examples of slander?

Some common examples of slander include making false accusations about someone's character, spreading rumors about someone, or making damaging statements about someone's business.

Is defamation hard to prove?

In order to prove defamation, the plaintiff must show that the defendant made a false statement about them to a third party. The statement must have caused injury to the plaintiff's reputation, and the defendant must have acted with negligence or intent to harm. While this may sound like a high burden of proof, it is actually not as difficult as it seems. First, it is not necessary to show that the entire reputation was destroyed, only that it was damaged in some way. Second, the plaintiff does not need to prove that they actually suffered any damages, only that the potential for damages exists. As a result, defamation claims are actually quite common

What is defamation business law?

In Australia, defamation is defined as a civil wrong that occurs when someone suffers damage to their reputation as a result of false or misleading statements. To succeed in a defamation claim, the claimant must prove that the statements were made about them, were published to a third party, and that they suffered damages as a result. If the claimant is able to do this, they may be awarded damages for hurt feelings and loss of reputation. In addition, the court may order the publication of a correction or apology if it finds that the statements were defamatory. For businesses, defamation law protects against false or misleading statements that could damage their reputation or goodwill.

How do I complain about defamation?

If you believe you have been the victim of defamation in Australia, there are a few steps you can take. First, try to resolve the issue directly with the person or organization who made the defamatory statement. If that is not possible or successful, you can lodge a complaint with your state or territory fair trading agency. You can also take legal action by filing a defamation claim in court. However, before doing so, it is recommended that you seek legal advice to ensure that you have a strong case and understand the potential risks involved. By taking action against defamation, you can help to protect your reputation and uphold your rights.

What is neutral reporting?

In journalism, the term "neutral reporting" refers to a commitment to accuracy and fairness in storytelling. Neutral reporters strive to present both sides of a story in an unbiased way, without favoritism or distortion. This can be a difficult task, as reporters often have their own opinions and biases. However, neutrality is essential to journalistic integrity, and it is one of the core principles of journalistic ethics. When done correctly, neutral reporting provides readers with essential information that they can use to make informed decisions. As such, it is an essential part of democracy and an important cornerstone of the free press.

The Complete Due Diligence Checklist for Buying Commercial Property | KMB Legal

katie@kmblegal.com.au (Katie Chan) — Mon, 16 May 2022 12:06:40 GMT

The Complete Due Diligence Checklist for Buying Commercial Property: 10 Steps to Take

There are a number of factors to consider before purchasing commercial property. Location is key, and you'll want to make sure the property is situated in an area that is conducive to business activity.

The condition of the property is also important, as you'll want to ensure it is up to standard and able to accommodate your needs. You'll also need to consider the size of the property and whether it is large enough to accommodate your business. Finally, you'll need to think about the price of the property and whether it is within your budget.

There are several factors to look into, which is why due diligence when buying commercial property is important.

Let’s dig into this in detail.

What is due diligence?

Due diligence is the process of researching a potential investment in order to reduce the risk of financial losses. Due diligence for buying a commercial property typically involves investigating the property’s condition, location, and zoning regulations. It may also involve running a background check on the sellers and checking for liens or other encumbrances on the property. By taking the time to do their due diligence, investors can minimize the risks associated with commercial real estate purchases.

Due Diligence Checklist when buying a commercial property

1. Location

Is the property located in a desirable area? Consider things like foot traffic, public transport and parking.

Location is often one of the most important factors to consider when searching for a new home or business. It can impact everything from commute times to the type of amenities that are available. That's why it's so important to include it in your due diligence process when considering a new location. Here are just a few of the things you should keep in mind:

Zoning regulations: Make sure you're aware of any zoning regulations that could impact your use of the property.
Crime rates: If you're looking for a safe neighborhood, be sure to check out the crime rates for the area.
Proximity to amenities: How close is the property to schools, shopping, and other amenities?

2. Zoning

Is the property zoned for commercial use? Check with your local council to confirm.

Zoning is an important consideration in any real estate transaction. It regulates the use of land for commercial, industrial, or residential purposes. Zoning ordinances can vary greatly from one municipality to another, so it is important to be familiar with the zoning regulations in the area where the property is located.

Zoning can have a significant impact on the value of a property, as well as on its future development potential. For these reasons, it is essential to include zoning in any due diligence checklist. A knowledgeable town plannercan help to identify any potential zoning issues that may affect the property.

3. Building condition

Get a building inspection to assess the condition of the property and identify any potential repairs or renovations that may need to be carried out.

When considering any property purchase, it is essential to carefully inspect the condition of the building. This due diligence will help to ensure that you are fully aware of the potential costs involved in bringing the property up to an appropriate standard.

It will also give you a better understanding of the property's value and its potential resale value. In some cases, the cost of repairs can be so high that it makes more financial sense to walk away from the deal.

However, even if the repairs are not prohibitively expensive, they can still eat into your profits if you're not careful. As such, it is always advisable to consult with a qualified building inspector before making any final decisions.

4. Title

Check the title to ensure there are no encumbrances on the property and that it is registered in the correct name.

One of the most important items on the checklist is title. The title is a document that proves ownership of the property.

It includes information such as the names of the current and previous owners, any liens or encumbrances on the property, and any easements or rights of way.

This information is essential in understanding the property's value and potential risks. Without a thorough title search, you could find yourself locked into a bad investment.

5. Leases

If there are any existing tenants, check their leases to see how much time is left on their terms and what the terms are.

When considering the purchase, it is essential to review all of the leases associated with the property. The terms of the leases can have a significant impact on the value of the property and your ability to generate income from it.

For example, if the current tenants have favorable lease terms, they may be able to stay in place for many years to come. On the other hand, if the leases are due to expire soon, you may need to invest considerable time and money in finding new tenants. In addition, the terms of the leases can also affect your ability to make improvements or changes to the property. As a result, conducting a thorough review of all leases is an essential part of the due diligence process when considering the purchase of a commercial property.

6. Strata

If the property is part of a body corporate scheme, check the body corporate by-laws to see if there are any restrictions on commercial use or any special levies that may be payable. You also want ascertain the amount held in the sinking fund and any proposed expenditure the body corporate intends to make.

In addition to evaluating the condition of the property and its potential for generating income, it is also important to consider the restrictions that may be placed on the property by body corporate by-laws.

These by-laws can impose significant limitations on what can be done with the property, and they can also be costly to change. As a result, it is essential to review the body corporate by-laws before signing any contract.

7. Outgoings

Check what outgoings are payable on the property, such as council rates, water charges and body corporate levies.

One important element of due diligence is to carefully assess all outgoings associated with the property. This includes things like rates, insurance and maintenance costs.

Failure to properly account for outgoings can have a major impact on the profitability of a property and should therefore be given careful consideration.

8. Insurance

Make sure the property is adequately insured for both buildings, public liability and contents cover.

There are a number of potential risks that must be covered by insurance, including fire, flood, theft, and vandalism. In addition, the property owner will be responsible for any injuries that occur on the premises.

As a result, it is essential to make sure that the property is adequately insured before completing the purchase. In most cases, the lender will require that the borrower obtain a policy with coverage limits that are equal to or greater than the value of the loan. By ensuring that the property is properly insured, both the buyer and the lender can protect their investment in the event of any unforeseen damages.

9. Tax

Check with your accountant to see what tax implications there may be in owning the property.

Any potential commercial property investment should include a careful review of the tax situation. This is because taxes can have a significant impact on the bottom line, and they can also vary widely from one location to another.

As a result, it is important to know what the tax burden will be before making a purchase. Furthermore, taxes can also change over time, so it is important to stay up-to-date on the latest rates.

In order to make informed decisions, buyers should work with a qualified tax professional who can help to understand the implications of any potential purchase.

10. Financing

Arrange suitable financing ahead of time so you know how much you can borrow and what the repayments will be.

Funding is a vital part of any commercial property due diligence checklist. The process of assessing a potential property investment can be very costly, and without adequate funding in place, it simply isn't possible to move forward.

There are a number of different ways to finance a commercial property investment, but the most important thing is to make sure that the numbers add up. Once you've found a property that meets your investment criteria, it's essential to work with a professional team to assess the risk and return profile.

Only then can you make an informed decision about how to proceed. Without proper financing in place, it's simply not possible to conduct a thorough due diligence assessment - and that could be costly down the line.

Documents

There are two elements you need to look into before you commit to a commercial real estate purchase, the property and the owner.

For property verification, the following are the basic documents that you need:

Title search
Plan
Any encumbrances that show up on the title, such as easements;
Department of Transport & Main Roads searches;
Contaminated Land;
Rates and water;
Drainage and sewerage plans;
Development/building approval searches;
Soil testing;
Land tax search;
Council Building notices search;
Town planning searches;
Surveyor searches.

These are the basic documents that you need to verify the owner you are making the purchase from:

Litigation searches;
Company search and PPSR search on the owners of the property;
Bankruptcy & PPSR searches if the owners are individuals;
Trust deed if the property is owned by a trust
All relevant financial information such as tax returns, BAS, and financial statements (you should seek advice from your accountant as to what financial information would be relevant for the type of commercial property transactions);
Copy of any leases if the property is leased;
Copy of community management statement and comprehensive body corporate record search, if the property is within a body corporate;
Copies of any management/supplier agreements in relation to the commercial property
Obtain advice from surveyors, town planners, engineers and builders depending on any developments they wish to carry out on the property;

A consultation call with us will clear any doubts you have about documentation. This article does not constitute legal advice.

Physical Site Visit

When considering the purchase of commercial property in Australia, there are a number of factors that should be taken into account during a site visit. First, it is important to assess the condition of the property and identify any potential repair or maintenance issues that may need to be addressed.

Second, it is important to consider the location of the property and whether it is situated in an area that is likely to experience future growth. Third, it is important to review the zoning regulations that apply to the property and ensure that they are compatible with your desired use for the property.

It is important to obtain a comprehensive report from a professional Quantity Surveyor which outlines all of the estimated costs associated with the purchase and ownership of the property. Finally, seek appropriate legal advice about anything that confuses you.

Conclusion

Commercial property is a big investment, and it's important to do your homework before purchasing. By doing your research ahead of time, you can avoid making a costly mistake with your commercial real estate purchase.

There are many factors you need to take into account, from zoning laws to infrastructure needs. Contact KMB legal if you're looking for help understanding all of the legal implications of buying commercial property. We have years of experience in this field and can guide you through every step of the process. Book a free consultation with a commercial lawyer now.

FAQs

How do you prepare for due diligence?

Before starting due diligence, it is important to understand the process and what is needed from you as the business owner. The first step is to compile a list of all the documents that will be requested by the potential buyer. This includes things like financial statements, tax returns, contracts, leases, and insurance policies.

What is an Example of Due Diligence?

When buying property, legal due diligence typically includes things like touring the property, reviewing its financial history, and checking for current zoning changes that could affect its value. Looking into current lease arrangements, car parking arrangements if you plan of starting an establishment that will see a lot of foot traffic may also be important.

What is Standard Due Diligence?

Commercial property buyers usually hire experts to assist with due diligence prior to purchase. These might include environmental consultants to assess the potential for contamination, engineers to evaluate the condition of the buildings and conduct a visual inspection.

Property lawyers can review documents, identify any potential risks and conduct court registry searches. The buyer's team will also conduct a market analysis to determine whether the asking price is reasonable, and they may negotiate with the seller to try to reach a more favourable deal.

In some cases, the buyer may also choose to have a financial appraisal performed in order to get an independent assessment of the property's value.

Meaning and Rights of a Primary Carer | KMB Legal

katie@kmblegal.com.au (Katie Chan) — Mon, 16 May 2022 10:16:49 GMT

Meaning and Rights of a Primary Carer- Here's all you need to know about Legal Parenting arrangementsThis is a subtitle for your new post

In Australia, the term "primary carer" refers to the person who is the primary caregiver for the care of a child. This can be either the child's mother or father, or another relative such as a grandparent.

The primary caregiver is typically the person who is most involved in the day-to-day care of the child, and who provides the majority of financial support. In some cases, the primary carer may also be the child's legal guardian.

The role of primary carer is important because it helps to ensure that a child has stability and consistency in their life. It also allows for a strong parent-child bond to develop. The primary carer plays a vital role in a child's development and wellbeing.

In the legal field, the term "custody" is often used to describe the relationship between a parent and child. But in Australia, this word is used less frequently. That's because the word "custody" usually carries the connotation of "ownership."

Australian courts will consider what is in the best interests of the child, which is why the term– care arrangements– is more apt here.

How do you define a primary carer?

According to the Australian Government Department of Human Services, a primary carer is defined as “the person who has day-to-day responsibility for the care of a child.”

The child's primary carer, meaning the main parent, is responsible for providing basic needs such as food, shelter, and clothing, as well as physical and emotional care. They also play an important role in ensuring that the child receives medical care, education, and other essential services.

3 types of parenting arrangements

According to family law, here are three main types of parenting arrangements: sole care, joint care and legal care. Sole care means that one parent has primary responsibility for the child, while joint care entails shared responsibility between both parents.

Legal care , on the other hand, refers to the right of both parents to make major decisions about the child,called equal shared parental responsibility. In practice, most parenting arrangements are a combination of these three types. For example, a common arrangement is for one parent to have sole physical custody of the child, while both parents share equal responsibility of the child.

Ultimately, the best interests of the child will always be the primary consideration in any parenting decision.

Does the primary carer have more rights?

While both parents have legal rights and responsibilities when it comes to their children, the primary carer usually has more parenting time and, as such, more rights in relation to day-to-day care. This can be especially true in cases where the other parent lives overseas or is unable to care for the child due to work commitments.

In addition, the primary caretaker typically has more decision-making power when it comes to decisions about day-to-day parenting matters. However, it is important to note that the primary carer does not have complete control and that both parents have a say in decisions about their children with regard to major long-term decisions.

Can you have two primary caregivers?

In Australia, it is possible to have two primary caregivers. This arrangement is often used when one parent works full-time and the other parent stays at home with the children. In such cases, both parents may share in the caregiving duties, including picking up and dropping off from school, preparing meals, helping with homework, being healthcare providers, along with other critical tasks.

While it is certainly possible to have two primary caregivers, there are some advantages and disadvantages to consider. Having two primary caregivers can often provide a sense of stability for children. They always know that there will be a family member there for them, no matter what.

FAQs

Who has more rights, Father or Mother?

Parental rights are not automatically determined by whether a parent is listed on the child's birth certificate. Instead, parental rights are based on the principle of what is in the best interests of the child. When making decisions about parental rights, the Court will consider a range of factors, including: the child's age, stage of development, the child's relationship with each parent and well-being.

What does being the primary parent mean?

Being the primary parent refers to the person who takes care of the majority of the parenting duties for a child. In many households, this role is typically filled by the mother, although there is no reason why it couldn't be filled by the father, or another relative or caregiver. The primary parent is typically responsible for tasks such as feeding, bathing, and dressing the child; providing emotional support; and supervising homework and extracurricular activities.

What is the difference between primary and secondary care?

Primary care refers to the parent with whom the child will live most of the time. Secondary care, also called visitation, refers to the time that the child spends with a different parent. In some cases, both parents may have equal care of the child, meaning that the child lives with both parents an equal amount of time.

Can a father take the child away from the mother?

In the eyes of the law, a mother and father are both considered equal parents with the same rights and responsibilities. This includes the right to have a relationship with their child and make decisions about their care. However, there are some situations where a father may seek to take custody away from the mother (and vice versa) and requires assistance to do so.

This can happen if one parentbelieves that the other is unfit to care for the child or if there is riskof abuse or neglect. In these cases, that parent may apply to the court for care and, if successful, be awarded primary or sole care of the child. While this is not an easy task, it is possible for a parent to take time with the child away from the other parent under certain circumstances.

How do you prove a parent is mentally unstable?

In order to prove that a parent is mentally unstable, it is necessary to provide evidence of their mental health diagnosis from a qualified mental health professional. This diagnosis must be well-documented and include information about the parent's symptoms and how they impair their ability to care for their child. Additionally, providing testimony from other individuals who have witnessed the parent's instability firsthand will assist the situation.

What makes an unfit parent?

There are some common signs that a parent is not able to adequately care for their child. These may include neglecting basic needs such as food and shelter, failing to provide proper medical care, or engaging in harmful behaviours such as using drugs or alcohol in front of the child. In severe cases, an unfit parent may also physically or sexually abuse her child.

Enduring Power of Attorney to Secure your Future

Mon, 16 May 2022 08:46:25 GMT

Enduring Power of Attorney to Secure your Future

In Queensland, the main type of legally recognised document that allows someone to make decisions on behalf of another person is an Enduring Power of Attorney (EPA). This document allows the appointee to make decisions about the financial and/or personal welfare of the person they are appointed for.

The attorney can only make decisions while the EPA is in place, and they must always act in the best interests of the person they are representing.

Enduring Power of Attorney

A power of attorney is a legal document that gives someone else the authority to make financial and legal decisions on your behalf. In Australia, there are different types of powers of attorney, as well as variations in the meaning of the term between each state and territory.

In Queensland, there are two types of power of attorney: general and enduring. A general power of attorney allows your attorney to make decisions about financial and legal matters on your behalf, while an enduring power of attorney remains in effect even if you become unable to make decisions for yourself.

An enduring power of attorney (EPA) is a document that gives another person the authority to make financial and/or property decisions on your behalf. An EPA can be used if you become incapacitated or unable to make decisions for yourself, and can be an important tool for protecting your interests and ensuring that your affairs are managed in accordance with your wishes.

The person you appoint as your attorney (known as your 'agent') will have the same powers as you do to make financial and property decisions, including the authority to buy or sell property, manage bank accounts, and invest funds on your behalf. However, it is important to note that your agent must always act in your best interests and in accordance with your wishes.

If you need help, you can contact our experienced Gold Coast family lawyer s. We can start with a quick free consultation to learn about your circumstances and provide you with next steps.

Who can be an Enduring Power of Attorney?

Under the Act in Queensland, an enduring power of attorney must: be at least 18 years old; not be a paid carer or a health provider for the principal; not be a service provider for residential services where the principal is a resident; and if the person would be given power for a financial matter, not be bankrupt or taking advantage of the laws of bankruptcy as a debtor. An attorney can also be the public trustee (if you have no-one else you trust) or a trustee company. This means that if you are planning on appointing someone as your enduring power of attorney, you need to choose someone who meets all of the above criteria.

When you are looking for an attorney, it is important to choose someone who is not only knowledgeable and experienced but also trustworthy and reliable. After all, you are trusting this person with your case and your future. A good attorney will be honest with you about your chances of success, keep you updated on the status of your case, and return your calls in a timely manner. They will also be discreet with your information, protecting your privacy and reputation. Finding an attorney who possesses all of these qualities can be difficult, but it is worth the effort to ensure that you have the best possible chance of success.

The enduring power of attorney is a more popular and well-known option, but enduring guardianship may be a better choice for some families. It’s important to understand both options so you can make the best decision for your loved ones. Have you decided which type of arrangement is best for your family?

FAQS

Do I have to be a legal practitioner to be an Enduring power of Attorney?

In Australia, enduring power of attorney (EPA) is a legal document that gives someone else the authority to control your legal and financial affairs on your behalf. The person you appoint as your attorney is known as your 'agent'. An EPA can only be made by a person who has the mental capacity to understand what they are doing. This means that you must be over the age of 18 and have the ability to make your own decisions. You also need to be aware of the nature and effect of the EPA. You do not need to be a legal practitioner to be an EPA, but you must be nominated by someone who is. If you are not sure whether you have the mental capacity to understand and make an EPA, you should seek legal counsel.

What happens if I cannot appoint an enduring power of attorney in Australia?

If you do not have an enduring power of attorney in place in Australia, you can appoint a public guardian as your attorney.

Family Report in Australia: What to Expect and the Best Way to Prepare

katie@kmblegal.com.au (Katie Chan) — Mon, 16 May 2022 08:37:14 GMT

Family Report in Australia: What to Expect and the Best Way to Prepare

Family reports are a cause of concern for many families that are newly facing the situation. To minimise anxiety it helps to learn about what you can expect during the family report process and how you can best prepare.

When the courts order a family report the main focus is always on the children’s best interests. However, we understand that moments of family breakdown can cause extreme turmoil for everyone involved. A private professional can look after your family law matter until you find a resolution, giving you peace of mind.

This can look different for every family. We strive to support you in a caring and pragmatic manner that guides you through the process. Our experienced and caring team members can offer advice and help you find the right resolutions for your situation.

If you and your ex-partner agree on settlement terms we can finalise your matter and submit signed consent orders to the court. If agreements have yet to be made, that’s okay. We can also assist with dispute negotiations and family court representations. We always work in a sensitive and understanding manner. Please reach out to us to schedule a free consultation today .

Here is what you can expect in this article:

What Is a Family Report?
How to Prepare for a Family Report and What You May Need
Key Pointers Before Going to a Family Report Interview
FAQ
How Can I Prepare the Children for the Family Report Process?
What Should I Expect in Family Report Interviews?
What Do You Say in a Family Report?
How Much Does a Family Report Cost?
Will Our Information be Confidential?
What Does a Family Consultant Do?
How Long Does a Family Assessment Take?
What is 62G?
What If I Disagree with the Family Report?
Can I Challenge Section 7?

Even though this can be a trying time for many families, it is all for the greater good of the children involved. Take a breath and focus on what you can control by learning about the family report process and ways you can prepare.

What Is a Family Report?

A Family Report is an assessment meant to help you and the court make the best interests regarding children. These independently conducted reports are usually done when a family case is progressing to a final hearing.

A registrar or a judge orders a report under section 62G of the Family Law Act of 1975 . A family consultant prepares the family report under the organisation of the Court Children’s Service.

It is their job to learn about the children’s experiences, development, and family circumstances, as well as any other relevant issues to the case. They use this information to make recommendations for arrangements that have the best interests of the children at the core.

You, or your lawyer, should expect to receive written notice advising you of the date, time, and location of your appointment to meet with the family consultant. You and the children will meet for the interviews in the Court Children’s Service area of the Court registry. However, if a Regulation 7 Family Consultant is working on your case the interviews may be at a different location.

How to Prepare for a Family Report and What You May Need

If an order for a Family Report is made, you and any other significant people will need to attend the interview appointment with the consultant. Appointments are usually not changed except for exceptional circumstances.

If You Need to Reschedule

If you think you have special circumstances that will cause you trouble in attending a scheduled appointment you should contact the court immediately. You can do so by using the CCS details in the appointment letter. If you do not follow the outlined family report process, then you will incur additional delays and costs.

Consider the Best Arrangements for Your Children

You will want to prepare yourself by deciding what arrangements you want to have established for your children. Make them thorough. Prepare an explanation as to why the arrangements you want are the best option for your children and family.

The focus of the court is to make the best arrangements for the children. They are not concerned with the wants of the parents or any other party.

Information You May Need

The family report writer has access to documents that are filed in court by both parties. They will read them as directed by the family court. You do not need to bring any other documents to the family report interviews.

The family consultant will gather information related to the family dispute. This includes information regarding past and present parent arrangements, and the parenting capacity of you and the other parent. If you are still navigating the divorce process our family lawyers can help clarify any questions for you.

They will also gather information about your children’s wishes, relationships, and any safety concerns for the children. They may also request your permission to contact teachers, doctors, or other relevant professionals who can provide more information about your children.

Prepare With a Family Lawyer

Meeting with a family consultant on your own can create anxiety. Something you can do to prepare is speaking with a family lawyer before meeting with the consultant.

A family lawyer will be able to provide legal advice when you need it. And they can represent you in your family court proceedings.

Key Pointers Before Going to a Family Report Interview

Each family consultant will conduct their interviews and create their family reports differently. If you have looked over any other family reports don’t expect yours to go the same way.

Read through your affidavit material and any other filings in your proceedings. Take note of any areas of concern. Bring notes with you if that makes you feel more prepared. Keep in mind, that anything you share may end up being in the final report because nothing is confidential
Make sure you have prepared what arrangements you want for your children and why those arrangements are the best for your children
Dress comfortably, but also clean and presentably
It is a good idea to bring water and snacks to the interviews, as they can take most of the day
Have an additional adult come to watch the children while adults are being interviewed
Also, bring a game or something to do with the children during downtime. The report writer may want to see how the children interact with the adults
Speak with a family lawyer who can clarify and help prepare you for the process

FAQ

How Can I Prepare the Children for the Family Report Process?

You cannot coach children on how to behave during the family report interviews. The children should be free to express their views and wishes if they want to do so. If the report writer feels that children have had coaching this can lead to doubts about what the children say.

The (the court is now called Federal Circuit and Family Law Courts of Australia)has information to help you and your children prepare for a meeting with a family report writer. You can find brochures with answers to questions the children might have. There are also informational videos available to watch.

You can also look to your family lawyer if you need advice on how to answer your children’s questions about the family report.

What Should I Expect in Family Report Interviews?

The family consultant will conduct a series of individual interviews. They can take a day to a couple of days to complete. The family report writer may also include other significant persons in the children’s lives. Adult siblings, half-siblings, other family members, and anyone else with a meaningful relationship with the children are likely to participate.

Your children will interview on their own, separate from any other party. This way the children can share their wishes if they feel like doing so. The interview process will also include observations of the interaction between the children and each parent and any other significant persons.

After the Report is Written

The family report is released before the final hearing of your court case. The family report writer cannot directly provide you with a copy of the report.

After it is complete, the judicial officer receives a copy and will formally release the report. You or your lawyer will receive a copy. If an independent children’s lawyer has been appointed they will receive a copy as well.

Oftentimes, matters are settled based on the findings of the family report. If you reach an agreement and send signed consent orders to the family court you may not need to go back. The court encourages this outcome and is happy to assist to confirm agreements.

What Do You Say in a Family Report?

Every family report interview is different because each family situation is different. The family report writer will be collecting information to make recommendations for the well-being of your children.

Expect questions to gather information about your children and their individual needs. As well as your children’s relationships with important people in their lives, and their views and wishes.

The family report writer will also ask about your views and what you think is best for your children. They will also collect information regarding family history, parenting roles, and present parenting arrangements. They will also want to know about what is going on in your and your children’s lives and anything relevant to safety.

How Much Does a Family Report Cost?

Both parties involved in a family report usually split the cost equally. There are exceptions to this. For example, if one party has a high income and the other party has a very low income or if the parties are funded by Legal Aid. If you are still dealing with formal property settlement after divorce the court may consider this situation as well.

The court may also decide to fund the cost of the family report. However, there are benefits to privately paying for the family report yourself. It usually allows you to select your family consultant and the family report is normally completed much quicker than when the court covers the costs.

Will Our Information Be Confidential?

Any of the information provided to the family report writer is not confidential. Any information gathered is admissible to the court and can become evidence in your case.

The consultant will use the information gathered in the family report and may present the information in court if they are called to appear during cross-examination.

After the issuance of the family report, it cannot be shared with anyone outside of the parties involved in the court case or their lawyers. Other people, like additional family members who want to see the report, cannot do so without the court giving permission first.

A family consultant must make a report to Child Welfare Authority if they reasonably suspect three things.

That the child or children have been or are at risk of abuse
A child or children are being or are at risk of being ill-treated
A child or children are, have been, or are at risk of being exposed to psychological harm

The child consultant may also be required to contact the police if they believe a person is at risk of harm or serious injury.

What Does a Family Consultant Do?

There are different types of family consultants . You could have a Court Child Expert who is appointed by the court to be a family servant, or you could use a Regulation 7 Family Consultant. They are responsible for considering the specifics of the family case and making recommendations that best meet the needs of children’s future care, welfare, and development.

Family consultants are experts in children’s family court matters. A family consultant is usually a social worker or psychologist who has skills and experience in working with family law issues. You can visit the professional standards legislation website to find information about the current professional standards legislation for each state or territory.

How Long Does a Family Assessment Take?

You should expect the family report questions to take most of the day. It depends on each family case and what the family consultant considers necessary.

The family report interviews are usually scheduled to keep the children entertained and with the consultant for the least amount of time possible. Once the interviews are completed, it can take anywhere from 7 to 21 days to have the final report issued.

What is 62G?

Section 62G of the Family Law Act allows the courts of Australia to order a family report. They can do so if the care, welfare, or development of a child is relevant to a family law proceeding. It states that the courts may direct the family consultant to create a report on whatever they request. But the main focus is always the children’s best interest.

Sections within 62G cover what is required from family consultants, and the authority they and the court have when carrying out the process. Report writers can require additional steps like a psychiatric assessment report for family members, among other things.

What if I Disagree With the Family Report?

Once the report is released the family consultant is legally unable to discuss it with you by phone or in writing. Keep in mind that family reports are only one piece of evidence that the court considers when making a decision.

If you wish to challenge the family report prepared, the Family Law Rules 2004 allow you to do so through cross-examination in family court. This means the family consultant must be called as a witness, having at least 14 days notice.

The cross-examination that happens during family law proceedings allows you to ask the family consultant about the contents of the document written and their independent assessment of your family.

Can Section 7 Be Challenged?

Section 7 of the Family Law Act covers the parenting arrangements and welfare of children in Australia. Parental responsibility is the ability of parents to make decisions that affect the day-to-day and long-term welfare of the children. It includes factors like where they go to school and what their legal name is.

Both parents have the same parental responsibility for their children, no matter which parent they live with unless otherwise ordered by the court. There is a presumption that it is in the best interests of the children for the parents to have equal parental responsibility and consult one another about major decisions affecting the care of the children.

This presumption does not apply if there is a history of family violence or there has been any record of abuse of a child, parent, or any family member living with the children.

Overall, the basis of the decision of who the children live with and spend time with is made in accordance with the best interests principle. A ‘live with’ order is usually awarded by the federal circuit court to the parent that is better able to show they can meet the child’s best interests.

If you want to challenge the decision that is made, you can attempt to sort it out through a family dispute resolution . It is a requirement to take part in family dispute resolution before attending court unless there is an urgent exception like violence or abuse.

You can utilise the support of children’s contact services, which helps children of separated parents have contact with their other parent when there are safety concerns. You can also speak with a lawyer to get advice and help with this process.

Let Us Serve You

Our Family Lawyers are available to help you understand what is going on and walk you through the steps. KMB Legal strives to resolve family law disputes in the most cost-effective and stress-free way possible. This means resolving matters quickly without needing to go through court.

However, our experienced family law litigation team is ready to provide excellent representation in court, if need be. Our senior lawyers have complex experience in the areas of family law as well as corporate, commercial and property law. This helps us be able to give advice and represent you through the most challenging of situations.

If you are preparing for the family report interview process, please don’t go it alone. KMB Legal is dedicated to helping Gold Coast families resolve their disputes in a compassionate and caring manner, allow us to answer your questions during a free consult with no commitments.

Binding Financial Agreement: Everything you need to know

katie@kmblegal.com.au (Katie Chan) — Wed, 20 Apr 2022 09:18:01 GMT

Binding Financial Agreement: Everything you need to know

In Australia, a financial agreement is a written document that sets out the terms and conditions of how two people share their financial resources. Popularly known as a prenup, a BFA can be used to:

split property and assets between two or more people
set out who pays for what (e.g. who pays the mortgage, who pays for groceries, etc.)
manage and divide money and assets between two or more people
set out what will happen to money and assets if someone dies.

Financial agreements can be made before, during or after a relationship has ended. They can be made by married or de facto couples, or by any two people who are not married or in de facto.

What are the benefits of a financial agreement?

Financial Agreements are important because they can help couples avoid costly and time-consuming legal disputes about money matters and abide by family law. They can also help ensure that each person’s financial interests are taken into account when a relationship ends. Financial Agreements can be tailored to meet the specific needs of each couple and can be amended or cancelled at any time if both parties agree.

There are many benefits to having a BFA, including:

providing clarity and certainty about who owns what and who is responsible for what
avoiding conflict about money and possessions
saving time, stress and legal costs if a relationship breaks down.
maintenance of the family law system

Who can qualify for a Financial Agreement?

Financial Agreements, very similar to prenuptial agreements, are legal agreements between couples that can be used to set out how they will handle their finances during and after their relationship. Financial Agreements can be made before, during, or after a relationship has ended, and can cover issues such as property ownership, asset division, spousal maintenance, and superannuation. Financial Agreements can be entered into by couples who are:

Married
intending to marry
living in a de facto relationship
have separated from a marriage or de facto relationship.

If you and your partner have already entered a BFA, it is important to seek legal advice from a qualified solicitor. This will help ensure that the existing financial agreement is legally binding and will protect your rights and interests.

When is a BFA recommended?

Couples often look at financial agreements in the following situations:

When one party has considerably more assets than the other, an inheritance or a family business they have come into)
When one party has significant obligations from which they wish to protect their spouse
When stakeholders want to protect the business from marital disputes if one of the spouses are a significant part of this business
When one of the spouses needs to provide for others and cannot risk tampering with a situation like that in case of a separation.

Steps to make a Financial Agreement in Australia

If you and your partner are considering entering into a BFA, there are a few things you need to do first.

1. Get legal advice

You must each get independent legal advice from a lawyer before you sign a BFA. This is so you understand what the agreement means and the consequences of signing it. This is also a legal requirement for the BFA to be legally binding under the Family Law Act .

2. Make a financial disclosure

Both parties must make full and frank financial disclosure. This means you must disclose all assets, liabilities, and resources. You must also disclose income, expenses, and debts. This is required so the parties are fully informed about the matrimonial property pool in the event of separation.

3. Draft the agreement

Your lawyer will help you draft the financial agreement. The agreement must include the following:

The names and addresses of the parties involved
The date the agreement was made
Details of each party's assets and liabilities
How the assets and liabilities will be divided
Any other terms and conditions that need to be included

4. Sign the agreement

Once you have both agreed to the terms of the financial agreement, your lawyer will help you to sign it.

5. Independent Legal Advice

As stated above, each party to the financial agreement must have legal advice. The legal advice must be independent by two separate lawyers. Each lawyer must sign a certificate of independent legal advice contained in the BFA.

If you follow these steps, this will help ensure that your BFA will be binding and enforceable in court.

Conclusion

No matter where in the world you are, it is important to have some kind of written agreement in place should you have a relationship breakdown. This will help to ensure that both parties are treated fairly and equitably during and after a divorce. While financial agreements may not be romantic, they can provide peace of mind during what can be a difficult time in the family court.

While prenuptial agreements are not legally required in Australia, they can be very helpful in safeguarding both parties during the marriage. If you are considering getting married, it is important to discuss financial agreements with your partner and seek someone to provide legal advice to ensure that you are protected in the event of a divorce.

FAQs

What should a binding Financial agreement in Australia include?

A binding financial agreement (BFA) is a written agreement under the Family Law Act, 1975 between two or more people that sets out how they will divide their property and finances if they separate. BFAs are commonly used in Australia to help couples avoid the cost and stress of going to court if they decide to break up.

There are a few things that every BFA must include in order to be legally binding:

The names of all the parties involved in the agreement
A statement that each party has received legal advice before signing the agreement
A full disclosure of each party's financial circumstances, including income, assets and debts to make the process of income and property settlement easier.
The terms of how the property and finances will be divided between the parties
The signatures of all the parties involved in the agreement

If you want your BFA to be legally binding, it's important to get independent legal advice before signing it. This means that each party has their own lawyer who can advise them on the implications of signing the agreement.

Can you write your own financial agreement in Australia?

Yes, you can write your own BFA in Australia. However, it is important to seek legal advice to ensure that the agreement is enforceable and meets your specific needs and those of the Family Law Act. A BFA can be a very effective way of ensuring that both parties are fairly compensated in the event of a breakup. It can also help to avoid costly legal disputes.

Since this is not an informal agreement, it is important to be aware of the following:

The agreement must be in writing and signed by both parties
The agreement must be fair and reasonable, and not unduly favour one party over another
The agreement must be made without coercion or duress

Who signs a binding financial agreement in Australia?

Both parties to a marriage or de facto relationship can sign a binding financial agreement in Australia. However, it is important to note that the agreement must be signed by both parties before any property can be divided between them. If one party does not sign the agreement, then the other party will not be able to receive any of the benefits that were outlined in the agreement.

Do binding financial agreements expire in Australia?

No, binding financial agreements do not expire in Australia. They will continue to be binding until they are terminated or amended. This means that both parties must comply with the terms of the agreement, or they may face legal penalties. If you have any questions about your binding financial agreement, it is best to speak with a lawyer.

How does a binding financial agreement work in Australia?

When two people decide to get divorced, they will need to come to an agreement about how they will divide their assets. This can be a difficult process, and often requires the help of a lawyer. In some cases, the couple may choose to enter into a binding financial agreement.

A binding financial agreement is a legally binding contract that sets out how the couple will divide their assets. This can include property, money, investments and superannuation. The agreement can also cover issues such as child support and spousal maintenance.

The agreement must be fair to both parties and must be signed by both parties and their lawyers. Once it is signed, it is legally binding and can only be changed if both parties agree to it.

How do you get legally separated in QLD?

If you are considering a binding financial agreement Qld, it is important to understand the process and what is involved. In most cases, you will need to obtain a separation order from the Court.

The first step is to speak to a family lawyer who can advise you on your options and help you prepare the necessary paperwork. They can also help you to negotiate any financial or property settlements that need to be made.

If you and your spouse are able to come to an agreement about the terms of your separation, you can make a joint application to the Court. If there is disagreement, the Court will need to make a decision on the matter.

Can a binding financial agreement be challenged?

Yes, a binding financial agreement in Australia can be challenged. However, there are certain grounds on which an agreement can be challenged, such as if the agreement was entered into under duress or if it is unfair. If an agreement is successfully challenged, it may be set aside by the court.

What is a separation declaration?

A separation declaration is a document that is filed with the court by one or both spouses in order to begin the process of legally separating. This document outlines the grounds for separation, as well as any other relevant information pertaining to the couple's marriage. It is important to note that a separate declaration is different from a divorce decree, which is the final legal document that dissolves a marriage. A separation declaration is simply the first step in a longer process.

What Is a Deed and When Is It Helpful to Have One in Australia?

katie@kmblegal.com.au (Katie Chan) — Tue, 19 Apr 2022 19:39:22 GMT

What Is a Deed and When Is It Helpful to Have One in Australia?

When dealing with contracts it is important to know what a deed is. A deed is a binding promise to do something that requires no consideration. This is one of the key differences that makes a deed different from an agreement and/or contract.

A deed shows that someone has a serious intent to do what they said they would do with another party. They are most commonly used to pass legal or equitable interests in property, to confirm an agreement between parties, or to create a binding obligation on another party.

Our team at KMB Legal has decades’ worth of collective experience in commercial and family law that allows us to personalise services for the Gold Coast community.

Whether you need assistance for a small business or large enterprise, or you are simply making a deed for a personal situation, we are here to help make it a fast and simple process. We can assist from drafting documents to negotiations, and settling disputes.

If you are preparing to execute a deed there are formalities you will need to adhere to. This article will cover important information you will want to know. Here is what to expect:

What is a deed?
How are deeds and agreements different?
Different types of deeds
Key components of a deed
Are deeds legally binding?
How to execute a deed
Final thoughts
FAQ
What type of deed is commonly used?
What is a deed in a mortgage?
Where are property deeds kept?
What is a deed in property law?
Does a deed need two parties?
What is a settlement deed?
Is there a limitation period for deeds?
Key takeaways
Get your questions answered

What Is a Deed?

A deed is a particular form of legal document which indicates a party’s promise to do something. There are many different types of deeds, and they are specific to their local state or territory.

The common law requirements for executing a deed are for it to be written, sealed and delivered to the other party. People usually create a deed as a solemn indication that they intend to transfer an interest in property or create an obligation they must act on.

A deed becomes contractually binding even without consideration. However, if you fail to follow the guidelines set forth by your local laws you may create a deed that is unenforceable.

How Are Deeds and Agreements Different?

Although they may seem similar, there are two key differences between deeds and agreements.

There are three specifications for making an agreement:

There needs to be a party that makes an offer and a party that accepts that offer
The parties need to have the intention of being legally bound
There needs to be an exchange of consideration (something of value)

The first important difference is there are only two necessary specifications to form a deed. They are that an offer is made and there is an intent to be legally bound. There is no consideration provided when making a deed.

To give a simple example, if you sell something for the money you may need an agreement . But if you are giving something away that does not require consideration you might need a deed.

A second key difference between deeds and agreements is that you only need the deed signed, sealed, and delivered by one party to become a binding agreement. Whereas with an agreement you must have the signature of both parties for it to be legally binding.

Different Types of Deeds

Confidentiality deed
Deed poll
Deed of termination
Escrow deed
Financial guarantee or letter of credit
Indemnity deed
Deed of forbearance
Deed of settlement
Deed of novation
Deed of release

Key Components of a Deed

There are 45 formalities of deeds as outlined by the Property Law Act of 1974 . It states that you do not need to use any formal words to form a deed. But, it must be signed, sealed and delivered by the executing party, with at least one witness.

Other key components are to include the names of involved parties, the date, and any clauses or covenants.

Are Deeds Legally Binding?

Deeds are not just fancy words. Executing a deed does create a binding obligation that becomes legally enforceable.

If there is a breach of a deed you can pursue remedies against the breaching party. The most common is specific performance or damages for breach.

A breach occurring for a deed is more simple to take to court than one concerning an agreement, as it does not require proof that consideration was given.

How To Execute a Deed?

Deeds created for companies require two directors, or one director and the company secretary, to provide their signatures. No witnesses are required. As soon as one party signs the deed it becomes binding. It does not matter if the other party has signed the document or not.

The person signing the deed must write it down and deliver it to the other party.

If you are creating a deed outside of business reasons, then you should have at least one witness to the signature. The witness should be over the age of 18 years old, and must have known you for at least one year. They must include their full name and residential address, and they cannot be a party to the transaction.

You may also wish to seek advice from a legal professional to make sure you execute the deed correctly. The legislation will be specific to each state and if you make a mistake the deed can be unenforceable in court.

Final Thoughts

Deeds can seem easy to create, however, to form a deed that is valid and enforceable, it may be wise to seek legal assistance. A deed executed for a business may be more complicated than one created for personal reasons. The right legal services can help you understand and follow all of the professional standards legislation requirements.

FAQ

What Type of Deed Is Commonly Used?

Deeds of confidentiality are an example of a type of deed commonly used. They are helpful when a party wishes to receive confidential information without providing any consideration.

This piece of contract law protects any confidential information shared between companies, like intellectual property. It includes many clauses that detail the consequences of disclosing information from your confidential discussion.

But there are many other reasons someone might want to use a deed. Here are some of the reasons they are commonly used:

To pass a legal or equitable interest in property or other rights
To confirm an agreement that passes legal interest in property or rights
To bind another party by an obligation
To share intellectual property between two companies
To evidence an agreement that is made after a dispute between two parties
To provide a bank guarantee
To ensure another party does not share confidential information with a non-disclosure deed
To transfer property

What Is a Deed in a Mortgage?

A deed in a mortgage is referred to as a Certificate of Title, or a title deed. It is a document prepared to transfer the property into the name of the buyer. It is a legal document showing who owns the property.

Each Australian state and territory manage their land registries. For example, Titles Queensland manages the digital copies for Queensland. Check with your local agency for specific details.

Where Are Property Deeds Kept?

The government used to hold paper title deeds for every property in Queensland. In 1994 they went digital, and now the Queensland Land Titles Registrar manages them.

Property owners can have a certificate of title if they would like one. But, you must first apply to get one. If you have a mortgage on the property you will need your mortgagee to consent to its issuance as well.

What Is a Deed in Property Law?

A deed in property law comes from the Old System, or general law title passed down from the crown. Most of the land in Australia is now held under the Torrens title system. This includes all of the lands in the Australian capital territory.

However, much of the Northern territory is still under general law. This means it still verifies the validity of the deed of conveyance for the property and ensures proper title for the deed of transfer to be clear.

Does a Deed Need Two Parties?

You do not need two parties to become legally bound by a deed. It becomes immediately binding when the executing party signs it.

What Is a Settlement Deed?

You can use a deed of settlement when you are in a commercial dispute and have reached an agreement for a resolution that you are ready to formalise. A deed of settlement will make sure that the agreement is satisfied. If it is not, the breaching party can be taken to court.

Is There a Limitation Period for Deeds?

There is a limitation period for bringing a deed to court. It can vary by state so check for current time frames in your specific location. The limitation periods start at the point when the breach, or dispute, first occurred.

At the time of this article, the limitation periods are:

New South Wales limitation period - 12 years
Queensland limitation period - 12 years
Australian Capital Territory limitation period - 12 years
Western Australia limitation period - 12 years
Tasmania limitation period - 12 years
South Australia limitation period - 15 years
Victoria limitation period - 15 years

Key Takeaways

Remember, the major difference between a deed and an agreement is that there is no consideration required for the creation of a deed, and only the person executing the deed needs to sign it to be legally binding.

They are commonly used to show that someone has the most serious indication to do something. They often serve as evidence that property interest or something similar is being exchanged.

You should check with the legislation specific to your state, region, or territory to find out the specifics when entering into any agreements, as modern contract law can change frequently.

It is always a good idea to seek out legal guidance when you plan to create legal relations. A professional legal team can provide advice and assistance. This can save time and cost that might arise from mistakes when trying to do it yourself.

Get Your Questions Answered

Let our team at KMB Legal help you with your deed creation. We can assist in drafting fully enforceable deeds you can rely on should you experience a breach down the road.

If you seek specific advice about a deed that has already been executed we can help you sort any questions. Please contact us for a free consultation .

What is a Memorandum of Understanding (MOU) & Why Use One?

katie@kmblegal.com.au (Katie Chan) — Mon, 28 Mar 2022 11:27:31 GMT

What is a Memorandum of Understanding (MOU) And Why Use One?

A memorandum of understanding (MOU) is a legal document that sets forth the agreement between two parties. This is usually a commercial relationship.

It spells out the terms and conditions of the relationship, and establishes the responsibilities of each party.

A MOU can be used to establish a business partnership, outline the terms of a contract, or govern any other type of relationship. Whether in Australia or overseas, the MOU always serves as an outline for a formal contract, and is rarely considered a legally binding document.

Here's what makes a MOU different.

A Memorandum of Understanding is not a contract, though it sounds like one. It is not legally binding, and does not create any legal rights or obligations. However, it can be used as the basis for a future contract. A MOU can also be helpful in resolving disputes, since it provides a written record of the agreement between the parties.

Despite the fact that the Memorandum of Understanding is not a legally enforceable document, it still serves a very important purpose.

The terms of a MOU are often less detailed than those in a contract. This is because a MOU is not a legally binding agreement. It is also shorter and less formal than a contract.

What is the purpose of MOU?

MOUs are used to establish mutual goals between two or more parties. By setting out specific objectives and working together, both sides can benefit from the agreement and eventually create legally binding obligations. MOUs can be used for a variety of purposes, such as developing a business relationship, sharing knowledge, or co-operating on a project.

The Memorandum of Understanding can be useful for both businesses and individuals. For example, if you're starting a new business, you can use a MOU to outline the terms of your working relationship with suppliers and customers. This will help to avoid any misunderstandings when entering a formal contract further down the line.

Individuals can also use MOUs to formalise a binding contract between friends or family members. For example, if two people want to share a car, they could draw up a MOU to set out the terms of their agreement.

MOUs are generally not legally binding, but they can be helpful in setting out the expectations of both parties involved. If one party breaches the agreement, the other party may have grounds for taking legal action.

When drafting an MOU, it's important to make sure that all parties involved are aware of what's included. The document should be clear and concise, and it should spell out the consequences of breaking the agreement. It's also a good idea to have a lawyer from a commercial law firm review the MOU before signing it.

Types of MOU

There are two types of Memorandum of Understanding: bilateral, and multilateral.

A bilateral memorandum of understanding is an agreement between two parties, while a multilateral memorandum of understanding is an agreement between more than two parties.

What is a Bilateral MOU?

A bilateral memorandum of understanding is a type of preliminary written agreement that two parties make. This type of agreement is usually used to outline the responsibilities of each party, and can be used for a number of different reasons.

What is a Multilateral MOU?

A multilateral memorandum of understanding is an agreement between more than two parties. This type of agreement is often used when multiple parties want to work together on a project or goal. This can also help to outline the responsibilities of each party.

Key Components of MOU

The key components of an MOU typically include the following:

The names and contact information of the parties involved
The roles of the parties involved
The purpose of the agreement
The governing law
The effective date of the agreement
The shared goal
Important dates and commitments
Dispute resolution measures
The names and contact information of the parties involved

Every MOU is unique, and the content depends on the nature of the partnership. Seek legal advice before you enter further negotiations for understanding legally binding agreements.

MOU vs Contracts: What are the differences?

A MOU is more like a gentlemen’s agreement – it is an agreement that is generally not legally enforceable.. A contract, on the other hand, is a legally binding agreement between two parties. Both parties, however, are focused on a mutually beneficial goal. The difference lies in this– a legal contract is a serious declaration that binds the parties in law, while an MOU just outlines the preferred outcome.

A MOU usually outlines the broad strokes of an agreement, while a contract goes into more specific details. A MOU is typically used as a stepping stone towards a more formal agreement, such as a contract.

In detail, here are the differences between the two.

FAQS

Does MOU need to be notarised?

No, an MOU does not need to be notarised. However, both parties may wish to have the document witnessed and/or signed by a third party as a show of good faith. If either party plans to enforce the terms of the MOU in court, they may want to consider having the document notarised as additional evidence.

How long is a MOU valid?

An MOU is typically valid for a period of two to three years. After that, the agreement may be renewed or renegotiated as needed.

Is MOU valid in court?

There is no definitive answer to this question, as the validity of an MOU may vary depending on wide variety of factors such as the specifics of the agreement, the jurisdiction in which it is being enforced, the intentions of the parties and the circumstances surrounding the agreement itself.

However, in general, a MOU is more likely to be upheld in court if it is clear, concise, and includes all relevant information regarding the parties' obligations and rights. Additionally, both parties must sign the MOU for it to be legally binding. If one party refuses to sign, a court may not enforce the agreement.

What is the difference between an MOU and a MOA?

In Australia, a MOU, or memorandum of understanding, is a less formal agreement between two parties, whereas a MOA, or memorandum of agreement, is a more formal and binding agreement. A MOU typically outlines the terms of an agreement in less detail than a MOA, and is not legally binding. A MOA is more detailed and specific, and is legally binding.

A MOU is also less likely to be litigated than a MOA.

Can a MOU be cancelled in Australia?

Yes, a MOU can be canceled. However, the process for canceling a MOU varies depending on the terms of the agreement. In some cases, either party may cancel the MOU by providing written notice to the other party. In other cases, cancellation may only be allowed if both parties agree to it. If there is a dispute over whether or not an MOU can be canceled, the dispute may need to be resolved in court.

How do I terminate a MOU?

The steps for terminating an MOU are relatively simple. The parties simply need to agree on the termination and notify the other party in writing.

Once the termination is agreed upon, each party needs to provide written notification of the termination to the other party. This can be done through email, a formal letter, or even a phone call. It is important to make sure that the notification is clear and concise, so that there is no confusion about the end of the MOU.

Once the other party has been notified, the MOU is considered terminated. Both parties are then free to pursue other agreements or relationships. It is important to note that, depending on the terms of the MOU, there may be certain conditions or requirements that must be met before the MOU can be terminated. For example, some MOUs may require a certain notice period before termination can occur. Be sure to check the terms of your MOU before taking any action to terminate it.

What happens when a MOU expires?

When an MOU expires, the terms and conditions of the agreement are no longer in effect. The parties are free to renegotiate the terms of the agreement, or terminate the agreement entirely. If the MOU is renewed, the new agreement will contain updated terms and conditions that reflect any changes in the parties' circumstances.

Is a MOU an enforceable contract?

An MOU itself is generally not a legally binding contract, but it can be used as evidence of an agreement between two or more parties. An MOU may also include provisions that are legally binding, such as provisions related to confidentiality or non-compete agreements. Generally, a MOU will be less formal than a contract and may be easier to negotiate and execute.

How much detail does my Memorandum of Understanding need?

The amount of detail you need in a Memorandum of Understanding (MOU) depends on the complexity of the project and the level of detail you want to cover. An MOU can be as simple or as detailed as you need it to be. You may want to consult with a lawyer to help you draft an MOU that is specific to your project.

Some key items to consider when drafting an MOU include:

The purpose of the MOU
The parties involved
The project scope and timeline

Online Contracts: A Helpful Guide Before Signing

katie@kmblegal.com.au (Katie Chan) — Mon, 28 Mar 2022 10:20:43 GMT

Online Contracts: A Helpful Guide Before Signing

This guide to online contracts should help demystify the legal ins and outs of online contracts and determine if your contract is enforceable in Australia.

What is an online contract?

An online contract is a legal agreement that is created and executed electronically. It can be used for a variety of transactions, including the purchase of goods or services, the lease of property, or the establishment of a business relationship. This can include, but is not limited to, emails, text messages, and chat applications.

Online contracts are becoming increasingly popular due to their convenience and flexibility. They can be accessed from anywhere with an internet connection, and they can be signed electronically, which makes them faster and easier to execute than traditional paper contracts.

Types of online contracts

There are different types of online contracts. Some common types are:

Clickwrap agreement

A clickwrap agreement is a legally binding contract between two parties that is formed when one party clicks a button or checks a box on a website to signify their acceptance of the terms and conditions of the agreement. The other party is usually the owner of the website.

Clickwrap agreements are commonly used when a person wants to buy something online, sign up for a subscription service, or download software. By clicking the button or checking the box, the person is agreeing to the terms and conditions set forth in the agreement. These terms and conditions can include things like the price of the product or service, the length of the subscription, and the refund policy.

If a person does not agree to the terms and conditions of a clickwrap agreement, they usually cannot proceed with the transaction. This is because clicking the button or checking the box is often considered to be an acceptance of the agreement.

Clickwrap agreements can be enforced in court if there is a dispute between the two parties. This is because they are considered to be legally binding contracts. A party that does not adhere to the terms of a clickwrap agreement may be sued for breach of contract.

Browse wrap agreement

A browse wrap agreement, also known as an "I agree" agreement, is created when a user activates a hyperlink or button to indicate their consent to the terms of service. This type of agreement is generally less formal than a traditional contract, and typically includes fewer protections for the user. Because there is no signature or other form of authentication, a browse wrap agreement can be difficult to enforce in court.

Scroll wrap agreement

A scroll wrap agreement is when the terms and conditions are presented to the user in a scrollable window. The user is required to scroll through the entire agreement before being able to proceed. This type of agreement is often used for lengthy or complex agreements.

Scroll wrap agreements are generally considered to be binding contracts. However, there are some circumstances in which a scroll wrap agreement may not be enforceable. For example, if the terms and conditions are unfair or if the user was not given a reasonable opportunity to read and understand the agreement, a court may find that the agreement is not valid.

Adhesion contract

An adhesion contract is presented on a "take it or leave it" basis. This means that the user does not have an opportunity to negotiate the terms and conditions of the agreement. Adhesion contracts are commonly used for standard forms, such as terms of service agreements and end user license agreements.

Adhesion contracts can be enforceable in court if the terms and conditions are not unfair or unconscionable. However, if a court finds that the terms and conditions of an adhesion contract are unfair or one-sided, they may refuse to enforce the agreement.

Making an online contract

Electronic contracts are not as simple as many people think. In fact, there are different types of online contracts, and each has its own set of rules and regulations. These are the basic steps to be followed when creating an online contract:

Determine the type of contract you need.
Understand the terms and conditions of the contract.
Fill out the necessary information on the contract.
Review the contract before you sign it.
Sign the contract electronically or print it out and sign it physically.
Keep a copy of the signed contract for your records.

Online Contract Features

Electronic contracts are popular because of the convenience they offer. They can be completed quickly and easily online, without the need for paperwork with the help of digital signatures. They are also protected by encryption technology, which makes them more secure than traditional contracts.

There are a few key features that you to know to create online contracts stand out from the crowd:

Ease of use - Online contracts can be completed quickly and easily, without the need for paperwork or signatures. Consult the Electronic Transactions Act in your jurisdiction for more information.
Security - Online business contracts are protected by encryption technology, which makes them more secure than traditional contracts. The Australian Consumer Law is a great guide to follow when making electronic agreements.
Convenience - An electronic contract can be completed from anywhere, at any time.
Flexibility - Online contracts can be adapted to meet the specific needs of the parties involved.
Cost-effective - Online contracts are often cheaper to create and maintain than traditional contracts.

E-contract checklist

Use this checklist to make sure that your e-contract is legally binding. You should consult with a lawyer to ensure that your specific contract meets all legal requirements.

All Parties Must Be Legally Eligible to Contract: This means that they must be of legal age (18 years old in most jurisdictions) and have the mental capacity to understand the terms of the contract. If any party is not legally eligible to contract, contract law states the agreement will not be valid.
There Must Be an Offer and an Acceptance: The contract must contain a clear offer from one party and an acceptance of that offer by the other party. The acceptance must be unequivocal and made in the same form as the offer.
The Contract Must Be Certain: The terms of the contract must be clearly specified and agreed upon by both parties. If there is any ambiguity in the contract, it will likely be interpreted against the party that created the ambiguity.
The Contract Must Not Breach Any Laws: This means that the contract cannot violate any laws or regulations, including local, state, and federal laws. It must also be in compliance with Australian Consumer Laws.
The Contract Must be Signed: In order for a contract to be legally binding, both parties must sign it. If the contract is electronic, then an electronic signature will be acceptable.
The Contract Must be Delivered: The contract must be delivered to the other party in order for it to be legally binding. This can be done through physical delivery or electronically.
There Must Be Consideration: This is the legal term for something of value that is given in exchange for a promise. The consideration must be something that is legally recognised, such as money, goods, or services.
The Contract Must be Enforceable: This means that the parties must have the legal ability to enforce the terms of the contract if it is not honoured. This typically requires that the contract be written in a specific way and that either the parties reside in or the subject matter occurs in a jurisdiction where the contract can be enforced.

FAQs

Can contracts be signed online?

Yes, contracts can be signed online as long as both parties have agreed to the terms. In some cases, an electronic signature may be required in order to validate the contract. It's important to make sure that you have a secure connection when signing any type of contract online.

What are the features of an E-contract?

An E-contract is an online agreement between two or more parties that is formed electronically. It can be in the form of a document, an email, or even a chat message.

Some features of an E-contract include:

The ability to create and sign contracts electronically. This means that you don't need to print out and sign a contract, then scan and email it back. You can simply create the contract online and send it to the other party for signing.
The ability to store contracts electronically. This means that you don't need to keep a physical copy of the contract in a file cabinet. You can store it in the cloud, or even on your computer.
The ability to send contracts electronically. This means that you don't need to mail a contract to the other party. You can simply email it, or even chat with them online.
The ability to access contracts electronically. This means that you don't need to go to a physical location to get a copy of the contract. You can access it online, from anywhere in the world.
The ability to keep track of contract changes electronically. This means that you don't need to make a handwritten note of the changes and hope that you will remember them later.

What is a cross offer?

A cross offer is an offer made by one party to the other party that contradicts the first party's original offer. For example, if Party A offers to sell a product to Party B for $10, and Party B counteroffers to buy the same product from Party A for $5, then this would be considered a cross offer. Sometimes, a cross offer can be used as a way to confuse or mislead the other party into thinking that they are getting a better deal than they actually are.

What is a unilateral contract?

A unilateral contract is when only one party makes a promise. This party is known as the offeror, and the other party is the offeree. The offeror makes an offer, which the offeree can either accept or decline. If the offeree accepts, the contract is formed. If the offeror attempts to withdraw the offer, the offeree can hold them to the contract.

Unilateral contracts are often used in advertising, as they allow businesses to make offers that consumers can either accept or decline. For example, a business may offer a free trial of their product in exchange for the consumer's contact information. If the consumer provides their information and does not cancel the trial within the specified time frame, they are deemed to have accepted the offer and a contract is formed.

Are wagering agreements illegal in Australia?

Wagering agreements are not illegal in Australia, but there are a few things to consider before entering into one. First, make sure that all parties to the agreement are over 18 years of age and that everyone understands the terms of the agreement. Second, be aware that wagering agreements are not enforceable in court unless they meet certain requirements, including being in writing and signed by all parties. Finally, make sure that you understand the risks involved in entering into a wagering agreement, as well as the potential rewards.

If you are considering entering into a wagering agreement, it is important to seek professional advice from a law firm to ensure that the agreement is legal and enforceable.

How can contracts be discharged?

There are several ways in which a contract can be discharged. The most common way is by performance. This means that both parties fulfill their obligations as set out in the contract. If one party fails to perform, the other party may be able to sue for breach of contract.

What is a counteroffer?

A counteroffer is a new offer made by one party in response to an offer from the other party. A counteroffer voids the original offer, creating a new negotiation. When making a counteroffer, it is important to consider the other party's initial offer, their goals and objectives, and your own goals and objectives.

What are the legal issues in a cyber contract?

A cyber contract is a legally binding agreement that is made between two or more parties online. The main advantage of a cyber contract is that it can be easily negotiated and agreed upon by the parties involved. However, there are a few legal issues to consider when entering into a cyber contract.

What are voided contracts?

A voided contract is a formal agreement that is no longer in effect.

If a contract is voided, it is as if the contract never existed in the first place. This means that none of the parties to the contract are legally obligated to fulfill their duties under the agreement.

Everything you need to know about Trusts

Wed, 23 Mar 2022 17:08:53 GMT

Everything you need to know about Trusts

Trusts are an invaluable tool you must consider for running a business and estate planning. They aim to provide financial protection, tax benefits, and long-term support to your loved ones.

However, Trusts have a complex legal structure that makes them difficult to understand. Learning about Trust entities and what they offer can be a little intimidating, but it is the first step in protecting personal assets and estate planning and this guide will help you understand the concept in depth.

Please continue to read to learn about the basis of a Trust, its advantages and disadvantages, and the procedure to set up a Trust.

A Trust is simply an agreement in which one party (known as the trustee) chooses a second party (the trustee) for the job of handling money or assets for a third party (the beneficiary). For example, your grandparents could give their property or money to your father, who passes it to you. A trust allows you to bind this agreement legally, so it complies with the vision of your grandparents.

Trusts make it easier for you to manage your assets by placing them in the hands of a trustee, to pass it onto a specified beneficiary. People use also use trusts to minimise the tax on their assets or income and allow their loved ones to access the assets when they pass away.

So basically, a trust is a legal entity capable of holding assets on behalf of someone. A trust consists of three main parties. These three parties are described below.

The Settlor: The person behind creating the trust is the settlor, grantor, or trust maker. A Settlor donates their property, money, or anything of value as collateral. The Settlor’s job is also to decide the distribution of the assets and create the terms and conditions for the contract.

The Beneficiary: The person who you want to inherit your assets is your beneficiary. The beneficiary gets access to the trust’s assets but not outright ownership because, generally, there are rules attached to a trust. For example, a beneficiary might get to live in a home owned by the trust but not have the right to put it on lease or sell it. Beneficiaries are given the assets of the trust according to the contract and certain triggers set by the settlor. A common trigger is age- for instance, assets get inherited when the beneficiary turns 21.

The Trustee: The entity that looks over the money and fulfils the responsibilities set by the settlor is the trustee. The trustee does not get to own the trust’s property but rather be in charge of the distribution to the beneficiaries. Their job is to make sure that demands set by the settlor are being followed.

A Settlor can also choose to act as a trustee. This usually happens when parents set up trust funds for their children. There can also be multiple trustees or a financial institution (companies dedicated to overseeing the distribution of a trust). The settlor also compensates a Trustee for managing the minor child.

How does a Trust Work?

Estate planning involves determining how an individual's assets will be controlled and distributed among the beneficiaries after they die. This can include bank accounts, real estate, life insurance, artwork, and other valuable assets and even a single debt. Trusts are a popular entity that can make all this planning easier for you. Unlike a company, a Trust is a relationship and not a legal entity.

A trust is established whenever there is a separation of legal ownership from the beneficial or real ownership of an asset. An obligation is imposed upon a person (the trustee) to hold trust property or income for a particular person, or for the benefit of others (beneficiaries).

Placing money or any other assets in a trust allows you to pass it to someone in a systemized way, where you get to set the rules. For example, you can include a “spendthrift clause” in a trust fund so that the assets stay away from any creditors if they want to pursue either the grantor or beneficiary for any unpaid debts.

This means that even if the beneficiary gambles all their personal money and incurs a huge debt, their creditors will not use the trust fund assets. This way, your beneficiary will still have some backup funds to recover from any loss.

Advantages of a Trust

We will be looking at some of the common reasons people choose to create trust funds.

Trusts allow you to create a contract that stays private between you and the beneficiary. The difference between a will and a trust fund is that the will becomes public after the grantor’s death.

You can designate your assets directly to the person you want to inherit your property. If you have gotten remarried, then a trust can help you make sure your children will get access to your assets and not your spouse's children.

Protect your Beneficiaries: if your children are minors and lack the financial situation and skills to manage their property, then you can create a trust so that someone else gets the responsibility to look after the assets on their behalf.

Asset Protection: Many people use trusts to protect their assets. Once you put money into a trust, it becomes difficult for any third party other than the beneficiary to access your assets.

It allows you to limit how old your beneficiary needs to be to receive the assets. In most cases, the legal age for any beneficiary to acquire the trust’s assets is 18. However, you can also choose not to grant the access until your beneficiary reaches the age of 21, 27, or whatever.

It also lets you specify how you want the assets to be used. You will get the option to stipulate that money can only be used for education purposes.

The trust’s payouts can be set to be released in intervals. This will prevent your beneficiary from blowing all the funds assets at once.

Trust funds also let you minimise the real estate taxes so you can offer all your cash to your future generations.

Disadvantages of a Trust

Let us now discuss some of the disadvantages of a Trust.

Once created, trusts tend to favour your heirs inheriting your assets.

Handling the administration of a trust can be a little more complicated than just transferring funds to the beneficiary after the grantor passes away. For example, the trustee may be required to make regular distributions to the beneficiary and record some milestones.

The cost of setting up a trust is also a reason why people choose not to create them.

A trust is not a substitute for estate planning but rather it is an estate planning tool that helps you in the distribution of your assets.

Another disadvantage of a trust is that you must pay taxes on any income generated through its investments.

Different Types of Trust

There are many different types of Trust; depending upon your aim or the kind of assets you are trying to protect, some of them will specifically suit your needs better than the others. Let us now understand each one of these types in detail.

- Discretionary trust

In a Discretionary trust, one or more beneficiaries can be added. Still, the grantor is given complete discretion as to when and how many funds go to the beneficiaries.

The amount of assets that beneficiaries of a Discretionary trust receive is not fixed; even the beneficiaries are also not fixed. The Grantor has the power to set up the terms and time frames as broad or as limited as needed. For example, the settlor can set the distributions of income only for health care needs once the beneficiary turns 21, or the distributions for health care and educational needs can be made at any age.

It is a type of trust that aims to provide the settlor with the best flexibility and controls. This means protecting assets from the beneficiary's poor money-management skills, extravagant spending issues, or divorcing spouse.

Another good thing about incorporating discretionary trust into your estate plan is that it can help you to minimise the estate tax as the trust assets can be passed down to multiple generations, from your children to your grandchildren. (This is called “generation-skipping planning”). Additionally, it allows the trustee to dictate who will inherit the money left in the beneficiary’s trust when the beneficiary passes away; the trust assets can be kept in the family.

- Unit Trust

A Unit investment trust (UIT) is an older form of investment that has become quite unpopular over the last few decades. However, it still has some features that might appeal to investors. UITs share many similarities to mutual funds and exchange-traded funds as they are a tree of investments that pool multiple branches (investors) together.

In simple words, UITs are a type of legal trust that is not set up to transfer assets to a person or a cause but instead act as an investment tool. For example, in a UTI d, many investors open a single trust to purchase stock shares, bonds, and other securities.

There is a fund manager in every unit trust that overlooks the investment and divides the trust into different asset classes to reduce the risk. The unit trust is then divided into parts in accordance with the investors’ respective units held in the trust. Investors then hope to make more money as the unit’s value increases over time.

Investors can exit the fund by selling their units at the bid price to profit. The bid price needs to be higher than they initially paid for the unit(s). The main advantage of Unit trusts is that they help you to spread your money across different investments; Diversifying investments reduces the risk of loss.

- Hybrid Trusts

As the name suggests, a hybrid trust is generally a hybrid form of a discretionary and unit trust. Hybrid is a generic term used for a trust that shares similar elements from the previously mentioned trust types. This type of trust is quite appealing as it includes both advantages of both and offers a useful structure.

Hybrid trusts allow the rights and requirements of both the beneficiaries and grantor to be respected while still providing a flexible income and capital distribution between all the parties.

People choose to open this trust because of the income tax, asset protection, and capital gains tax attached to a hybrid trust. All this becomes relevant when there are more than two parties involved. For example, two separate families plan to buy a commercial property together.

The cost of creating a Hybrid trust is usually higher than setting up a unit or discretionary trust. Still, they offer more flexibility with tax planning and benefits that can be passed down to beneficiaries without any change in the ownership of the investment.

There are also revocable trusts whereby provisions and rules can be altered by the grantor. Similarly, the grantor cannot modify assets or terms without the beneficiary’s permission in an irrevocable truss.

Setting up a Trust

To set up a Trust, the logical first step is to identify the type of trust that suits your requirements the best. Of course, each of the mentioned types of trust has different set-up procedures and requirements. However, some of the common elements of a trust are discussed below.

1. Declaring assets

You will first have to create a list of the assets with their value that you want to include within your trust.

2. Appointing trustee

The next step is to hire an individual or multiple people you trust to overlook your assets. You can also choose to hire a management company with the legal process and authority to look over the distribution of your assets. We at KMB Legal provide you with skilled professionals that can help through effective solutions on your personal or business matters while shrinking the costs.

3. Determine the beneficiaries

The settlor will now have to create a list of beneficiaries who will receive the access and benefits of the trust. At this step, the settlor also decides the percentage of each beneficiary's assets.

4. Outline Terms

Lastly, the settlor has to focus on the trust deed composition. It is the legal document that helps the trustees set up and manage the rules and conditions of the trust.

How to Operate a Trust

Trusts are managed by individual trustees, trust departments of banks, and other financial institutions. Their responsibilities include disposition of funds, collection of income, distribution to beneficiaries, and replacement of assets.

The management of a trust includes record-keeping, reporting, and tax compliance. The individual or bank that manages all this for the trust’s grantor usually charges some fee. In addition to this fee, they can also charge expenses for financial and investment advisors, accountants, lawyers, brokers, property managers, and other professionals required in the trust.

Some firms allow individuals to establish trust fund accounts online with low-cost trust services. However, if you need a substantial trust with varied assets, you will have to incur significant costs for its formation and operations. This is why it is essential to consider the costs and find the best arrangements to save you on maintenance fees.

FAQ

Lastly, let us answer some of the most frequently asked questions about Trusts.

How do Trusts payout?

The grantor decides the payout of trusts while setting up the trust fund. The trust can pay a lump sum when the time period ends, or incremental payments can be made throughout the years. The grantor gets to choose distributions and payout terms of the trust however they want it to be.

How Trusts Get Taxed?

Different types of trusts are taxed differently, depending upon various factors. For example, the beneficiaries are charged a tax deduction from their income distributed to them. So, in this case, the beneficiary has to pay income tax rather than the grantor.

There is also a capital gains tax that is either paid through by the trust or the beneficiary. The complete amount distributed for the beneficiary's benefit is taxable. You should contact your trustee to find out the exact details of taxes in your case.

How do I start a Trust fund?

To start a trust fund, firstly, you will have to choose the type of trust you want to create. Then you will have to decide the trust details such as beneficiaries, trustees, etc. After that, you should hire an estate planning attorney to create a declaration of trust to formalise everything.

Who would set up a trust?

A trustee is an individual or institution with the financial responsibility to set up and manage your trust assets. In some cases, the grantor can also act as a trustee, and even trusted relatives or friends can also act as a trustee. However, you should prefer a corporate trustee if you want to serve for many future generations to come because a corporate trustee does not come with an expiry date and its legal liability is also limited.

Can I withdraw money from my trust?

When you set up a trust and name someone else as your trustee, it can be an excellent decision to mention in your trust that you are allowed to request cash withdrawals at any time. This is because to withdraw cash from your trustee, you will have to get the trustee's permission. There also may be some fees on transferring or removing assets from the fund, so be aware of those charges.

Can a trustee go to Jail for stealing from a trust?

Yes, a trustee can be jailed for theft if they ever steal from a trust.

How many trustees can a trust have?

There can be more than one trustee and more than one beneficiary in a Trust.

Can you use trust money to buy a house?

A trust can get a mortgage or home loan from any traditional lender, but the trust's grantor needs to be alive to request a home loan.

Does a trust need a bank account?

Trusts need to have a trust checking account which is a bank account held by the trust. The trustees can also access this bank account to facilitate transactions, as decided by the trust deed.

What assets cannot be placed in a trust?

Retirement accounts, Medical Savings accounts, Active financial accounts, and vehicles are some of the assets you cannot place in a trust.

Is it better to leave a will or a trust?

It is very common for people to get confused between a will and a trust since they have a lot of overlap. Both of them are to decide who will receive your assets, but they do it in different ways.

One significant difference is that a will doesn’t go into effect until you pass away. On the other hand, a trust is active and functioning immediately after its funding. As a result, creating a trust is a bit more complicated but offers some great benefits, such as total control over the distribution of assets and tax minimisation.

Why should you put your home in a trust?

You can avoid probate by putting your home in a trust fund. Additionally, it also helps you keep the details of your real estate private. This is because the probate process will make all the records public while passing down your property from a grantor to a beneficiary will keep everything confidential.

What happens to a trust when somebody dies?

When the grantor passes away, the trustee takes over to look after the funds and distribute them in the manner the grantor decided to.

What happens when you inherit money from a trust?

When you inherit money from a trust, you should contact the trustee or a lawyer to help you file tax returns on the received assets. Every region has different taxing rules, so you must report and pay the appropriate taxes.

Conclusion

By now, you must have got the answer to “what is a trust.” It is a way to provide financial support to your loved ones after you are no longer there. It is an essential part of estate planning and can help you control your assets' distribution.

While you do need to bear some costs to maintain a trust fund, they can provide you great peace of mind and tax benefits. You can choose to go with KMB legal to help setup your trust.

Unlike other trust services, our skilled professionals exclusively deal with daily trust inquiries. Furthermore, we make sure that the solutions provided by our trust experts are individually tailored to fit your personal needs the best!

Know These 10 Things to Gain an Advantage When Contesting a Will

katie@kmblegal.com.au (Katie Chan) — Wed, 23 Mar 2022 10:45:10 GMT

Know These 10 Things to Gain an Advantage When Contesting a Will

When a family member dies it is a very hard time, contesting a will can add significant stress to the situation. This article will outline what happens when a will is contested, who is eligible to contest the last will, and what you can expect during the process.

At KMB Legal we practice predominately Family Law and are here to help you navigate times of extremely stressful family matters. We operate on compassion and care for you and your family while resolving family law disputes in the most stress-free and cost-effective manner.

We built this list from the knowledge we have gained from over 15 years of assisting with estate planning, property settlement, mediation, and many other circumstances. In addition to Family Law, our other main practice areas include Commercial Law and Personal Injury Law. Because of this, we can navigate the most complex Gold Coast Family Law matters.

Before you enter into a claim dispute take a look at what you can expect. You will need documentation or other evidence to back up any claims. You will need to adhere to probate procedures and attend court-appointed mediation.

Many people settle their disputes in mediation, never having to go to court. This is an ideal situation as it saves court fees and can cut back the time it takes to disperse assets. A solicitor can help with the mediation process and help to deliver an agreed-upon settlement.

This list is here to help you understand what happens when contesting a will so you know the steps involved regarding a deceased estate dispute. The next sections will cover the following questions:

On what grounds can you contest a will?
What happens when a will is contested?
Is it hard to contest a will?
Who pays to defend a contested will?
Can you contest a will if you have been left out?
Can you contest a will after probate?
Can you get legal aid to contest a will?
Do you need a solicitor to contest a will?

The following information applies to general deceased estate disputes. It is always a good idea to speak with a trusted professional who can help you navigate the legal requirements for your specific situation. The steps you may need to follow when dealing with a contested will get determined by your specific circumstances and state law.

On What Grounds Can You Contest a Will?

Certain situations will allow for contesting a will and they vary by state. Keep in mind, contesting a will and challenging a will are two separate things.

Contesting a will happens when someone believes that they got left out, or deserve further provision from a will. The grounds for contesting a will are a demonstrated financial need and proof that the will-maker had a responsibility to provide for the contest.

If your situation meets any of these criteria you can contest the will based on the provision. The court may consider the moral obligation of the deceased to support the contest. It will determine their responsibility by comparing it to what they think a reasonably minded testator would do in making their decision.

The Basis of Provision

The basis of provision allows for certain categories of people to contest provisions that have been made for them. A child left out of a will can make a claim that they are an eligible person to commence court proceedings. They may present the court with a family provision application to request an award. The court has the power to grant that award if there is supporting evidence that the testator had a responsibility to provide for the beneficiary.

Some situations will allow a person to challenge the validity of a will. This happens when someone asserts the will is not valid because its execution did not meet formal requirements. If the testator lacked testamentary capacity the will is not valid. If someone forged the will or it was fraudulent it is invalid. Lastly, if the testator experienced undue influence a court might determine a will to be invalid.

Lack of Testamentary Capacity

Anyone who makes a will needs to be of sound mind to enter into a contract. If their mental capacity is questionable at the time of creating their will, someone can contest it. The court may refuse to admit the entire will to probate if it decides there was a lack of mental capacity at the time of creation. Probate will use a previous will, if available.

This is why it is advisable not to destroy a prior will.

This is a common reason that the court oversees disputes and is handled on a case by case basis. It will decide based on the evidence presented. If someone is making a will that is already in a fragile state or experiencing poor health they should get a medical report before signing the will. Medical records provided in a last will and testament help keep testamentary capacity from being questioned after the deceased’s death.

Does the person making the will understand what a will does?
Can the person making the will recall what property they have?
Does the person making the will remember the people they normally provide for?
Is the person making the will able to consider the people who would normally benefit from the will?
Does the person making the will suffer from any delusions about any of the people who would expect to receive the entitlement under the will?

5 questions to ask when considering if a person has testamentary capacity:

Undue Influence

Someone making a will is said to be under duress or undue influence if they are getting unfairly influenced by another at the time of making their will. If a court determines a will was made outside of the testator's free will, it is invalid. To prove undue influence there needs to be clear evidence of the influence that forced the testator to make the will a certain way.

Fraud or Forgery

Someone can challenge a will if there is evidence to support that a beneficiary committed fraud. They can also make a challenge if they believe the will to be a forgery. Fraudulent wills and forged wills will be deemed invalid, but you will need to prove these allegations to a judge.

What Happens When a Will Is Contested?

When a person contests a will it is because a “spouse”, “child” or “dependent” of the deceased feels that they got left out of the will unfairly, or were not justly provided for. It will go through a process of several steps to allow a judge to determine if provisions are necessary.

The following are general steps involved during a will contest but are not an exhaustive list. There may be many more legal formalities involved depending on the case.

First, the person contesting the will must prove that they are an eligible person.
That person, or their legal representative, will notify the executor of the will of their intent to make the claim. The executor needs to know so they can distribute the estate after the claim settles.
At this point, both parties involved can begin negotiations to try to settle without needing to go through the entire process of a court hearing. If they can reach a settlement both parties sign a formal agreement.
If negotiations fail, court proceedings will begin. A summons and an affidavit get filed in court and served to the executor.
The executor and beneficiaries have the right to defend the claim.
All parties to a will dispute take part in a mediation session. This is an opportunity for the parties to try to solve their dispute one more time before the court hearing.
If mediation does not resolve the issue then a trial will be set and all parties will need to attend.
Each party must present their positions before the court during the final hearing. This is where parties try to prove their financial position of need to the judge. It is measured against the size of the deceased estate.
After hearing all of the evidence the judge decides if there was an adequate provision, or if additional family provision needs to be made.
The judge also decides the responsibility for payment of court fees.

Some of the factors considered when contesting a will include:

Your financial need
The nature and length of your relationship with the deceased
You character
Any obligations the deceased has to you or other beneficiaries
Any contributions you made to the deceased's estate
Deceased’s estate liabilities
Your financial resources
Your age
Any disabilities you may have

Common Reasons For Will Disputes

Naturally, when a loved one passes it can cause a lot of negative emotions, they can become troublesome while waiting on the division of the deceased’s estate. Even with a valid will in place, beneficiaries can feel the need to dispute the instructions. Here are some of the most common reasons wills are disputed.

A Delay in Disbursement

The executor of the estate is responsible for getting a grant of probate and carrying out the instructions left in the will. There are no legal time limits that says how quickly they must act. If 12 months have passed and they still have not gone through probate court the beneficiaries can apply to the court to set a deadline for the person executing the will to complete probate.

Disagreements on Property Division

Many families enter a dispute over what to do with the property that was passed on by the will maker. For example, deciding on whether to keep or sell a family home. A common way to resolve this problem is for the interested person who wishes to keep the house to buy out the family members that wish to sell.

Suspicious Asset Transfers

Someone named as executor or who has been given the power to manage the assets of the deceased may make changes to assets and bank accounts. Other beneficiaries may believe that transfer of assets was unauthorized or unfair and reduced the value of the estate. Investigations are required to determine if the suspicious circumstances were authorized or not and any corrections that may need to take place.

Is It Hard to Contest a Will?

Contesting a Will under Australian succession law is a costly and lengthy process. While many people may have the standing to contest a will in the Supreme Court, it is not necessarily early to be awarded a provision of a deceased estate.

If the will maker has taken care in creating a valid will that is unambiguous in their wishes, it can be difficult to successfully contest it. Missing the deadline in your state for filing a claim can also make it much more difficult to win a provision. If your claim fails, the court may order you to pay the legal costs for bringing the claim to court.

Getting legal advice by talking to an experienced solicitor as soon as possible can help you to decide if filing a claim is right for you. They can also make sure you follow the proper process during the right time period.

Who Pays to Defend a Contested Will?

Contesting a will is not free, court fees can range from a few to many thousands. If the case goes to court the judge will determine who pays the court fees after hearing all the evidence for the trial.

In a family provisions case, you can pay no fees if you win your claim, as the costs will be covered by the estate if the claim is successful. However, it should be noted that even if you are a beneficiary of the residual estate, you will ultimately pay for court fees as the fees will come out of the estate before it is distributed to all beneficiaries. If the claimant is not successful the general rule is that they are ordered to pay the estate’s legal fees as well as their own.

Can You Contest a Will if You Have Been Left Out?

Yes, you can contest a will if you have been unfairly left out. Some laws determine who is eligible to contest a will. If you were fully or partly dependent on the deceased with a close personal relationship you may be eligible even if you are not a legal family member. If you are over the age of 18 and are self-sufficient then you will need to prove to the court that the deceased had a moral duty to provide for you. You will also need to demonstrate that you have a financial need. The types of people who are eligible to contest will include:

A current or former partner
De facto partner
Minor or adult children
Grandchildren
Members of the deceased’s household
Any dependents
Someone who lived in the same household

Can You Stop Someone From Contesting a Will?

It is not possible to simply stop eligible persons from contesting a will in Australia. But if this is something you are concerned about while estate planning, you can make arrangements to greatly discourage someone from lodging a family provision claim later on.

The best chance of avoiding family provision claims is to make adequate provisions for every beneficiary who could successfully contest the will. It does not have to be equal for each beneficiary, just reasonable for the relationship you share.

It is also helpful to provide written justification in your will about the allocation awarded to each beneficiary, being thoughtful of their current and future needs. You should sign the will in the presence of witnesses.

There are also steps you can take to change or distribute assets before your will becomes active. You can nominate a beneficiary for superannuation and life insurance policies. You can create jointly owned assets with the intended beneficiary who you want to inherit certain assets. You can also gift assets in your lifetime.

These strategies keep assets from becoming part of the general estate of a deceased person. This allows them to stay separate from assets that could be redivided should someone successfully win a family provision order. These can be tricky legal matters that can vary by state. It can also impact taxation and income benefits, so you should obtain legal and accounting advice before you take any action.

Can You Contest a Will After Probate?

Yes, you can contest a will after probate. A court gives a grant of probate after they determine a will to be valid. At this point, it is legal for the executor to carry out the will and distribute assets.

You can contest a will after probate, but if the assets are already distributed it can be very difficult. There is also a time limit to how long you can wait before contesting a will after probate.

In Australia, territories and states require adherence to their deadlines. They are as follows:

In NSW and ACT, the deadline is 12 months from the date of death to lodge a claim in court.
In Victoria, the deadline is six months from the date of the grant of probate to complain to court.
In Queensland, the deadline is six months from the date of death to notify the executor of a claim, plus an additional three months to lodge the claim in court.
In Northern Territory, the deadline is 12 months from the date of the grant of probate to lodge the claim in court.
In Western Australia, the deadline is six months from the date of the grant of probate to lodge the claim in court.
In Tasmania, the deadline is three months from the date of the grant of probate to lodge the claim in court.

Can You Get a Legal Aid to Contest a Will?

Legal Aid is not available to give legal advice or help contest a will in Australia. But you can use them to find information and resources regarding the subject. They may be able to assist in finding funding for your case. As well as help you find a legal team to handle your case.

Do You Need a Solicitor to Contest a Will?

It is not a requirement to use a solicitor to contest a will, but it is highly recommended to seek legal advice before proceeding with any claim. You may find yourself in the middle of a complex and costly situation that legal representation can help you out of.

They will be able to determine if you are eligible to make the claim. They will also be able to assess your circumstances and estimate your chances of success, allowing you to consider the worthiness of lodging a complaint in court. It is worth it to reach out to a local law firm, as many will discuss your situation for free and with no obligation so you can decide what is right for you.

If you believe you were excluded from a will or unfairly provided for, don't wait to get your questions answered. Reach out to our team at KMB Legal to schedule a free consultation and find out how we can serve you during this turbulent time.

Joint Tenants VS Tenants In Common: Which is Best For You?

katie@kmblegal.com.au (Katie Chan) — Wed, 24 Nov 2021 03:03:46 GMT

Joint Tenants VS Tenants In Common: Which is Best For You?

So you're finally ready to make that move. Yes, buying a house is a major accomplishment. Since it's one of the most significant investments an individual can make, many people decide to jump into homeownership with a partner.

After all, property costs have skyrocketed in the last few years. Did you know that the average asking price in Australia is $852,940?

Whether you've decided to purchase a house with a spouse, a friend, or a business partner, it's important to know exactly what type of agreement you're entering.

Types Of Joint Property Ownership

In property law, there are two main types of joint ownership:

Tenants in common
Joint tenancy

No doubt, at a quick glance, these terms may appear to be similar. Yet, there are vast legal and financial differences between these two. It is crucial to understand the legal implications of joint tenancy and tenants in common should one of the owners pass away or decide to sell their share of the property.

In this article, we'll explore the differences between joint tenancy, tenants in common, and how to determine which option is best for your situation.

Understanding Tenants In Common

When you decide to purchase property with one or more individuals, you have the option of entering into a tenants in common agreement. In this type of legal arrangement, the individuals involved can share equal ownership, or they may all own varying percentages of the property. For instance, one co-owner may have 75% interest vested in the house while the other owns 25% of the property.

Tenants in common agreements are flexible, and it clearly defines each owner's share of the property. In addition, it allows each owner to manage their interests independently and can be beneficial for tax purposes.

Joint Tenancy Explained

In a joint tenancy arrangement, both buyers have equal ownership and interest in the real estate property. Typically, married couples, family members, or longtime friends tend to enter joint tenancy arrangements.

If two or more individuals have a joint tenancy, they don't have an individual interest in the property. In this type of co-ownership agreement, it doesn't matter how much money each individual contributed to purchasing the property. Everyone shares equal interests and rights.

What Is The Difference Between Joint Tenancy and Tenants In Common

So, what's the main difference between the two proprietorships? The biggest distinction between joint tenancy and tenants in common is what happens to the property when one of the owners passes away.

In a joint tenancy, the rights of survivorship exist. This means that if one of the tenants in the joint tenancy passes away, by law, their portion of the real estate property automatically passes to the surviving tenant in that agreement.

The right of survivorship laws is rigid. The living tenant becomes the sole owner of the property regardless of contrary wishes expressed in a will.

Unfortunately, in tenants in common agreements, there are no rights of survivorship. Therefore, in the event of one of the tenants' death, their interest in the property becomes part of their deceased estate, and it doesn't pass on to the surviving tenants. In most cases, the deceased tenant's beneficiary will inherit their share in the property.

What Is The Advantage of Being Tenants In Common?

Purchasing a property as tenants in common offers several benefits. Most people dream of being free from the shackles of renting and relish in the idea of being able to own a house of their own where they can decorate as they wish. However, due to financial constraints, sole ownership isn't possible for everyone.

Tenants in common is a joint ownership option that allows a group of individuals such as blended families to pull together their resources to purchase a home. Whether the property is equally or disproportionately owned, all of the tenants in a tenants in common agreement have equal rights of access to the home.

Here are additional advantages of entering tenants in common agreement:

Every tenant in the agreement owns the asset
Each tenant has the legal right to sell their shares in the property
Tenants in the agreement can pass on their interest in the property to their beneficiary in their will

What Are The Disadvantages Of Tenants In Common?

Although tenants in common agreements can be appealing because of their flexibility, this arrangement can be very complex. They become even more complicated when the relationship between the property owners starts to change.

Having a Declaration of Trust can be beneficial for tenants in common agreements because it clearly specifies each tenant or owner's financial obligations and interests in the agreement.

It should also include an exit clause to govern how the property is sold even when all parties aren't in agreement. The Declaration of Trust serves as a protection for each party involved should conflict arise.

The main disadvantages of tenants in common agreements are:

All of the co-owners have to sign the transfer deed to sell the whole property
There are no rules that dictate how each owner sells their share of the property

What Happens To Tenants In Common When One Dies

When one of the owners in tenants in common agreement dies, their share of the property is subject to succession laws. This means that their interest in the home is transferred to the deceased estate and dealt with in accordance with the will. The interest in the real estate property wouldn't pass to the surviving owners in the tenants in common agreement.

Can A Married Couple Be Tenants In Common

Joint tenancy arrangements are quite common between married couples interested in purchasing a home together. However, some married couples might decide to hold a title to an investment property as tenants in common.

Like any other tenants in a common agreement, each party has the right to sell their interest in the property as they desire, and they'll both need to sign the transfer deed if they decide to put the property back on the market.

When a married couple decides to enter a tenants in common agreement, if one partner passes away, the surviving spouse doesn’t automatically inherit their interest in the property. The deceased spouse’s fractional shares are passed on to whoever they specify in their will. If there is no will in place, their fractional share in the home will be subject to intestate laws.

Do Tenants In Common Pay Inheritance Tax?

In Australia, there are no inheritance taxes or estate taxes . Therefore, if an individual inherits interests in a tenants in common property previously owned by their deceased kin, they don't have to worry about paying inheritance taxes.

Can A Sale Be Forced In Tenants In Common?

What happens when one of the co-owners in a tenants in common agreement wants to sell the whole property? Things can get tricky if one or more parties in the agreement refuse to sign off on the transfer deed.

You might be wondering if one of the co-owners can force the sale of the property. That largely depends on the state and territory. Every state in Australia has differing property laws.

Do Tenants In Common Own Equal Shares?

As previously mentioned, in a tenants in common arrangement, owners can have eitherequal ownership in the real estate property or different shares in the property. One party may have 65% interest in the house while the other owner only has 35% interest in the property.

Do You Need To Go Through Probate For Tenants In Common?

When one of the owners in a tenants in common agreement dies, their fractional share in the property passes to their deceaed estate. As a result, a grant of probate issued by the Supreme Court is necessary to transfer the ownership of the property to their next of kin or their beneficiary.

In a joint tenancy agreement, the deceased co-owner's interest in the property instantly passes to the surviving tenant, so there is no need for probate.

Can I Sell My Shares Of Tenants In Common

Each tenant or owner in a tenants in common arrangement has complete control of their portion of the property. This means that they can sell their interest in a property to whoever they want without seeking permission or informing the other owners.

Joint Tenancy or Tenants In Common Which Proprietorship Is Right For You?

As you can see, joint tenancy and tenants in common agreements have both their advantages and disadvantages. Yet, the key feature between these two types of ownership is the right to survivorship.

Everyone has different needs and preferences. It's best to consult an experienced lawyer to help you determine which option is best for you based on your unique situation and how you can protect yourself when making such an investment.

What to look out for in a franchise agreement

Sun, 14 Mar 2021 22:15:01 GMT

What to look out for in a franchise agreement

The franchise route can be a safe start to your entrepreneurial journey or the expansion of your business interests. With an established and proven track record, add commitment and hard work and you could be on your way to entrepreneurial success. Indeed, it has been argued that buying into a franchise is likely to yield the results one would expect compared to starting out completely on your own (1).

While the picture appears rosy, like in many relationships, there will be challenges from time to time, be they opportunities or problems. When they surface, there needs to be a mechanism to address them in a manner of mutual benefit to all parties. In this regard, a franchise agreement plays a vital role.

What is a franchise agreement?

Essentially, it is a written document that spells out the terms and conditions of the business relationship, or franchise arrangement entered between the franchisor (the business/person issuing the franchise licence) and the franchisee (the business/person buying the franchise licence).

A typical franchise agreement has 4 parts to it:

1. Terms governing the operations of the business

2. Franchisors' roles and responsibilities as well as obligations

3. Franchisees' roles and responsibilities as well as obligations

4. Steps and procedures applicable to the prospective franchisee prior to issuance of the franchise licence

In addition, there are two important facts to note:

1. A franchise agreement is not a business sales agreement

2. Franchise agreements will differ from business to business

Apart from the franchise agreement, there are laws and rules governing the conduct of franchised businesses as well as a Franchising Code of Conduct. Some of the details in them may be written into or referred to in the franchise agreement.

Franchise agreement and what you should look for in one.

1. The right to use the franchisor’s brand

This is imperative. It needs to be explicit in the franchising agreement that the use of the franchisor’s brand is permissible. The strength of the small business owners is embedded in the brand name.

2. Details pertaining to operating under the franchise brand

As prospective franchisees, it’s important you are aware of the franchising code, franchise agreement grants, and terms and conditions governing the use of the brand. Inappropriate or not permissible use of the brand may result in a breach of the franchise agreement.

3. Territories

Every franchisee is typically given an exclusive territory in which it can operate to avoid intra-franchisee competition. You may be granted more than one territory depending on the competing business. Whatever the number is, it’s important they are spelt out in the franchise agreement.

4. Initial franchise fee and costs associated with the purchase of the franchise

This is an area of the franchise agreement that must be sorted out early in the relationship. The figures vary across different types of businesses as well as operating models.

5. Advertising and branding obligations

This is often referred to as the marketing fee or ongoing fees. In a franchised business model, the cost of advertising and branding may be split into local and state or nationwide marketing fees. For the latter, there’s usually a common fund you’ll need to contribute towards. With the former, the franchisor may stipulate a sum relevant to your territory.

6. Intellectual property

From the brand name and logo to the actual product or service, the franchisor would have invested time and money into developing them and ensuring they work. It is their intellectual property. You will need to be aware of them to ensure you're using them correctly.

7. Terms and conditions pertaining to the renewal of the franchisee

The franchise agreement will spell out the terms and conditions pertaining to renewal as it is never for life. Again, they may vary across franchise agreements.

8. Services provided by the franchisor

A franchise agreement isn’t a hi-and-bye document. You should expect the franchisor to render services to help you get started and operate the business over a period of time. The franchise agreement will detail these services.

9. Training

You or your staff will need to be equipped with the relevant skills and knowledge to give the business a chance to succeed. The franchise agreement should detail the type of training to be provided, the length of time it will be provided and the frequency of training or retraining. It will also detail the party responsible for the training of new staff.

10. Quality control

The quality of products and services impacts directly the success of the business. You will need to know how quality control will be measured by the franchisor as it impacts the day-to-day conduct of the business.

11. Transfer of franchise business

You might choose to transfer your interest in the franchise to another party. This is allowed. However, there will be rules in the business system, or franchise agreement governing it.

12. Expiration of franchise agreements

As a franchise business, there are obligations you will have to fulfil upon the expiration of the franchise system. For example, you may not be allowed to work in the trade for a period of time, either as an independent or competitor franchise.

13. Legal relationship between franchisor and franchisee

Like in any business franchise relationship, its conduct must be governed by rules and regulations. Both parties’ roles and responsibilities, as well as obligations, are detailed in this section.

14. Provision for indemnity and liability

There are parts that are shared and those undertaken by the franchisor or franchisee alone. For example, as a franchisee, you are likely liable for public indemnity insurance of your store as well as workmen compensation for your staff.

15. Non-compete clauses and trade restrictions

You may have multiple business interests or intend to. If they compete against the franchisor’s own business, you may be disqualified or penalised if it was not on the disclosure document.

16. Dispute resolution clauses

Disputes will arise from time to time. When they do, it’s important they are resolved amicably and fairly. A franchise agreement will explain the mechanism to resolve disputes. It is usually the first resort.

To learn more about franchise agreements prior to entering into one, seek legal advice or book a consultation session with one of our legal experts.

1. https://www.smartcompany.com.au/business-advice/franchising/boost-juice-janine-allis-franchises-more-successful-other-small-businesses/

CTP Insurance: Are you covered?

Sun, 07 Mar 2021 22:13:03 GMT

CTP Insurance: Are you covered?

What is Third Party Car Insurance?

Compulsory Third Party Insurance covers compensation payments made to an individual who has suffered injuries arising from a motor vehicle accident.

Compulsory Third Party (CTP) insurance also covers payments made to individuals (often by-way-of Estate representation) who are killed in a car accident.

However, it doesn’t cover the cost of damaged vehicles or property. There are a set of circumstances and general policies worth considering when evaluating your ability to make a claim using compulsory third-party insurance.

1. Who is protected under CTP insurance?

In Australia, every owner of a motor vehicle must hold compulsory third-party CTP insurance. In Queensland and New South Wales, you must acquire compulsory third-party insurance prior to registering your car.

In contrast, CTP insurance is included in the price of registration in Western Australia, Tasmania, Australian Capital Territory, South Australia, and Victoria.

The compulsory third-party car insurance is attached to the vehicle, as opposed to a driver. Therefore, if the injury of driver B was caused by a car accident that occurred due to the fault, or primary fault, of driver A, then driver B can make a claim to the CTP car insurance company of driver A.

In other words, insurance extends to any driver of the motor vehicle and protects any individual who may be injured following the motor vehicle accident caused primarily by the driver of this vehicle.

CTP insurance also covers any member of the community who may be injured or killed in an accident, such as pedestrians or cyclists.

2. What does CTP insurance cover?

Notably, CTP insurance does not protect any damage caused to your vehicles or property, nor will it cover any issues surrounding the theft of the vehicle.

CTP insurance will also not protect you from liability surrounding damage caused to other people's vehicles or property.

CTP insurance will, however, cover the injured person's damages which can include but are not exclusive of, loss of earnings, medical expenses, and future loss of earnings. CTP insurance can also cover emotional loss such as pain and suffering.

3. Can I claim CTP insurance?

Subject to the accident being of no fault, or minimal fault, to the injured driver or victim, the injured party may be able to procure compensation.

The correct procedure which needs to be carried out in order to facilitate whether a claim can be successful is as follows:

A. Police

Ensure to report the accident to the police and complete any relevant documentation within your State or Territory.

B. Fault

Identifying the vehicle at fault is imperative. If the injured party was the vehicle at fault, claims will become limited. However, if the injured party was not the vehicle at fault, then the procedure is relatively easy from this point onwards.

C. Discover CTP insurer

It is important that you receive the details of the driver at fault CTP insurer so that you can make a claim. In Queensland, the CTP insurer can be identified by completing a registration search of the vehicle at fault.

In other States and Territories, this process may differ. In NSW, for example, you can find the CTP insurer of the vehicle at fault via Service NSW Check registration.

D. Follow the insurer's guidelines

Each insurer will have a separate set (however similar) of guidelines that must be followed accurately and effectively. You may wish to contact our firm in order to ensure this process is completed easily.

E. Lodge the claim.

4. Common circumstances where CTP insurance can be claimed

There are many different circumstances in which CTP insurance claims can be made. The primary element to remember is that the injured or killed claimer must not be at fault, or primary fault, for the incident.

For example, if a driver fails to give way and drives through a pedestrian crossing, injuring a person, then the driver is at fault. The pedestrian can therefore make a claim.

Another common set of instances that allow for CTP insurance claims to be made involves cyclists and motor vehicle accidents. If a cyclist is hit by a vehicle, they may lodge a claim.

Motor vehicle accident

Also, if a cyclist uses evasive maneuvers for the purpose of navigating around other vehicles that have made a sudden turn and consequently become injured, they may make a claim.

It is also important to remember that passengers traveling in a vehicle that is at fault in an accident are also able to make a claim if they suffer a personal injury caused during the accident.

5. When will I receive payment?

Every CTP claim will be processed at a different rate, however, on average, claims will be resolved within 12-18 months depending on the circumstances of the case.

Significantly, the CTP claim can be prolonged if the driver of the vehicle you have claimed to be at fault denies responsibility for the accident

The insurer denies liability or your injuries are complicated.

6. Why do I need a lawyer?

You will often hear that CTP insurance claims do not require the employment of a solicitor. However, there are many reasons why hiring a solicitor will greatly, and positively, impact your CTP insurance claim process and successful outcome.

For example, at KMB Legal, our lawyers can help you ensure that the forms are completed accurately and within the relevant time period. The investigation process is often taxing, and therefore a solicitor is an ideal person you can hire to help guide you through this process.

Due to our lawyers' expansive experience with CTP insurance claims, they will be able to provide you with estimates that broadly outline how much the CTP insurance and car insurance claim should be worth.

The time limits surrounding CTP insurance claims, car insurance claims, investigation processes, and other administrative work are extensive, and therefore adhering to such time frames can be stressful for an individual.

Here, at KBL Legal, we seek to aid you in this process and reduce the stress as well as time management issues that arise prior to and following the submission of CTP insurance claims.

CTP insurance claims are an integral element of road safety, protection, and allocation of liability in Australia. It is important to feel confident during the process of making a claim.

10 tips for a successful compensation claim

Mon, 01 Mar 2021 22:01:39 GMT

10 tips for successful compensation claims

Have you suffered an injury due to a third party’s negligence? If so, you will probably seek legal advice or compensation advice for your claim. As the injury can impact your current and future employability, a successful compensation can help regain any economic loss. To ensure you receive everything you’re entitled to, follow these simple tips.

#1 Seek help from our compensation advice claims experts

An injury can alter your life significantly. We understand how challenging it is to handle these changes before your compensation claim is finalized. You may have non-negotiable financial obligations, such as a mortgage, rent, or car payments, for instance. Your injury may force you to consider reducing your work hours, or perhaps ceasing employment entirely. However, this is not practical for most people. Although your health would benefit, the bills keep coming in. If you’re feeling stuck and need someone to speak to, or someone to provide advice, contact, call or email KMB Legal today for expert legal advice.

#2 Regularly follow up with your GP about your injuries

After sustaining a serious injury, consulting your GP regularly is very important. Ensure you inform them of the ongoing impact the injury is having on your physical and/or mental wellbeing. Also, report if you are experiencing an inability to work or enjoy your daily activities.

When visiting your doctor, always let them know if:

• You’ve taken pain relief prior to the appointment to oversee injury management

• You’re suffering chronic pain or are unable to cope with your job due to pain

• You’re suffering anxiety, depression in the present, or any other mental health condition as a result of your injuries

You may not be able to perform domestic chores, such as gardening or home maintenance, for instance. Or, you may be unable to participate in once enjoyed recreational activities, or even have sleep disturbances. Speak to your doctor.

This information is crucial to your compensation claim, so make sure you provide information to your doctor.

#3 Take sick leave (if needed)

When making a compensation claim, you shouldn’t inflate or downplay your injuries. If you notice pain flaring up and find work is making them worse, we advise taking sick leave. Never risk aggravating your personal injury further by continuing to work. Not only could your injury worsen, but you risk allegations your injury is not as serious as you’ve stated. If necessary, take unpaid or holiday leave. And remember to keep a record of the time off you’ve taken due to injury.

#4 Report any problems to supervisors/co-workers

After sustaining an injury, it’s common for employees to find aspects of their jobs more challenging. If you are facing problems at work, feel free to discuss these with your supervisor. However, if you feel reluctant to do this, at least mention the issue with your co-workers. Always seek assistance with duties you find difficult. This allows us to gather statements from your supervisor(s), co-workers, or perhaps both, vouching for the restrictions you are facing in your work.

#5 Cut your work hours (if needed)

Are you facing problems undertaking your regular work hours? Do you feel reducing your hours would assist in your recovery? If so, arrange for fewer hours and see if your injury responds well. Remember, you are not required by law to work in pain.

If you suffer pain during your shift, consult your doctor and ask about injury management whether they believe reduced hours would help.

If they agree, you’ll be issued a medical certificate. This advises that your work hours should be reduced until you deal with your health issues.

It’s important to note that you can only do so before your compensation claims are finalized.

#6 Seek new employment suited to your injuries (if required)

Your doctor may recommend you seek alternative employment or stop working entirely. In this case, you must do so before the compensation claim is finalized. And, as with the above rule, you cannot do so after the claim is finished.

#7 If resigning due to injuries, state this clearly in the resignation letter

In cases when injuries are especially severe, you may have to resign from your job. To ensure the compensation claim process goes smoothly, you must notify your employer in writing. And, make sure your resignation letter clearly states that your injury is the reason you have to leave your job.

#8 Report if employment is terminated

If you are terminated from your job after sustaining your injury and believe this is the sole reason, notify your GP immediately. Tell them that you feel the termination is due to the impact injury is having on your work performance, so they can make a note in your records.

In addition, you must inform your solicitor of any changes in your employment status. This is crucial regardless of whether it is due to termination or reclassification of your duties, as it’s a vital element of your compensation claim.

#9 Provide witness details to income loss

A reliable witness can prove an invaluable part of a successful compensation claim. Ensure you note down and keep a record of your workmates’ contact information.

This will allow our team to gather witness statements from them and provide more information that can speed up the process of compensation claims.

However, keep in mind that memories tend to fade and your co-workers may even switch jobs. So, the sooner you can provide us with this information, the more likely it is we will obtain accurate and favourable statements from them.

#10 Keep records of lost income and expenses (if self-employed)

Are you self-employed and struggling to maintain your workload following an injury? If you answered “yes”, you may be able to employ someone to assist you.

If you pursue this option, it’s important to keep accurate records of extra wages paid and a description of the new employee’s job responsibilities.

However, if you cannot afford to hire extra help or cannot find a suitable candidate, keep clear records of the work you have had to turn down and the resultant lost income. Also, ensure you note any future business opportunities you have lost due to your injuries.

These may be lost projects due to turning down a regular client, or because you cannot perform certain duties anymore.

Get legal advice

To help negate the financial loss incurred by a personal injury, contact KMB Legal today and our personal injury lawyers will help you. We act and provide guidance at no cost. We are your compensation, claim experts.

Lease disputes – When can I change the locks?

Thu, 14 Jan 2021 03:59:03 GMT

Lease disputes – When can I change the locks?

Being a landlord has many advantages, but it also comes with a high degree of stress and responsibility. Dealing with tenants, and especially tenants in default can be a difficult and time-consuming task. And it’s made worse by laws which, on the face of it, often seem to be on the side of tenants at the expense of landlords.

Such laws were put in place to protect tenants from rogue landlords, but if the other party decides to make life difficult the process of removing them from the property can be challenging. It’s not as simple as changing the locks. Proper legal advice and processes have to be followed to prevent legal issues and retaliatory court action from certain circumstances by the tenant.

So in this blog, we are going to cover the proper legal advice and process for dealing with lease disputes. We’ll discuss how to manage lease disputes, the early termination of leases, and how and when to issue a Notice to Remedy Breach. This should help keep landlords on the right side of the law when dealing with tenants in default.

What does the law say about lease disputes?

In the state of Queensland, before a landlord can terminate the lease and retake premises they must first serve the tenant with an appropriate form, " Notice to Remedy Breach " (Form 11 of Queensland government).

This obligation is set out in the Property Law Act 1974 (Qld) which stipulates that the notice must provide details of why the leases are in default and what steps the tenant must take to remedy the situation.

Furthermore, the tenant must be afforded a “reasonable amount of time” after being served the notice to bring the premises lease back into good standing.

If a landlord attempts to gain access to the property without following these steps they are in default of the Property Law Act 1974 . In such a scenario the tenant could then apply to the court for compensation.

The type of compensation tenants can claim includes:

1. Reclaiming court costs

2. The return of any other expenses incurred

3. Damages and compensation for breach of contract

The tenant can also apply for an injunction to restrain any such breach of contract in the future. Which will make it even more difficult to gain legal access to the property.

What is considered a “reasonable amount of time” within which to respond to a statutory notice?

The law is deliberately ambiguous in this area because each case should be considered on its own merits. But for guidance, we can look at how the courts have ruled on previous cases to get an idea of what is considered a “reasonable amount of time”.

Primary RE Limited v Great Southern Property Holdings Limited.

The case between Primary RE Limited v Great Southern Property Holdings Limited. [2011] VSC 242 . This complicated case involved a managed investment scheme that included forestry assets in various states across Australia and Tasmania. The tenant commercial leasing land for forestry management activities before subleasing it to several growers.

During the financial crisis of 2008, several of the tenants' growers went into liquidation which left the tenant unable to fulfil its obligations under the lease. The landlord Great Southern Property Holdings Limited was then forced to serve a breach notice to the tenant across several states.

The breach notice stipulated that the tenant had failed to resolve disputes and manage the plantation crop by following sound silvicultural and environmental practices; fertilise and harvest the plantation crop; spray herbicide and insecticide where appropriate; conduct weed control and remediate land erosion.

The breach notices were then followed approximately one month later by termination notices.

The tenant challenged the validity of the termination notices claiming that they failed to allow a “reasonable amount of time” for them to remedy the issues raised in the breach notice. They claimed that to remedy the issues raised and bring the plantations back into good standing would take more than a year.

How did the court rule?

The court ruled that one month was more than enough time for the tenant to respond to the breach notice. The purpose of the breach notice is to give time for the small business tenant to consider its position and provide a meaningful response. It did not require the tenant to rectify the issues raised.

The court deemed that a sufficient response to the breach notice would have been:

For the tenant to recommence management of the plantations in compliance with the lease terms.

Offer a proposal to pay compensation for any damage caused to the plantation.

Communicate a genuine intention to complete the above proposals.

The court also noted that the time required to remediate the breach is not the critical point. The following guidance was put forward as to what factors should be considered to determine reasonable time:

The purpose for which the notice is given

The nature of the breach

What is required to be done to avoid forfeiture?

To clear up any further confusion, the court also said that the breach notice should not leave the tenant speculating about what action it should take and (by when) to prevent the lease from being terminated.

Lessons for landlords about leases and dispute resolution

What is considered a reasonable amount of time to respond to a breach notice, and what is considered a reasonable response, will depend on the circumstances of each case?

In the above case, the court ruled that one month was more than enough time for the tenants to respond to issues brought up in the notice. The time needed to rectify the issues raised was not relevant in this case. Instead, the commercial tenants should have communicated what they intended to do to bring the lease back into good standing.

So when issuing breach notches landlords should be clear about:

Why the breach notice is being issued.
The precise nature of the issues involved.
What the tenant must do to avoid forfeiture
What is considered an adequate response to the issues raised in the breach notice and when it is reasonable to expect it.

Seek legal advice

Failure to provide any of the above may result in your breach or subsequent termination notice being challenged in court. While the challenge of legal rights may not prove to be successful, the other party defending such a case could prove to be expensive. If you would like more information about managing leasing dispute resolution, seek legal advice talk with our commercial lawyers today.

[Landlords] Lease incentive clawbacks deemed unlawful in Australia

Thu, 17 Dec 2020 01:03:26 GMT

Back in October 2019, the Victorian Civil & Administrative Tribunal (VCAT) made a decision which casts doubt about the validity of lease clawback clauses. The Tribunal which seeks to resolve disputes between parties cited an earlier decision by the Queensland Supreme Court in its reasoning.

The earlier Queensland Supreme Court ruling was at the time thought to be an anomaly since the case contained many unique features which would not apply to other cases. But the latest VCAT ruling sets a precedent which questions the validity of landlord lease clawbacks. Especially those which punitively impact tenants.

What are incentive clawback clauses?

Incentive Clawbacks are incentive clauses where the initial "incentive" is paid to a tenant to lease a premises and are re-payed to the landlord in the case of early termination.

Where incentive clawbacks are usually found within commercial lease agreements. But other examples can be found in insurance companies, large organisations and even within the federal government.

Landlord’s often use lease incentive clawback provisions in the lease agreement in an attempt to ‘clawback’ fit-out costs and other incentives used to sign-up new tenants. Such incentives vary but examples include contributions to fit-out costs, a rent-free period during fit-out (rental abatement) or a reduction in rental costs until space has been fully utilised.

Clawback incentive are offered on the condition that tenants are required to repay the incentive (or a proportion of the incentive) should the lease be terminated early. The rationale behind such contracts is that the incentive was offered in exchange for the tenant covenant to occupy the property during the lease term.

By failing to complete the lease term the tenant has failed to fulfil his part of the contract. They should therefore be forced to repay all or part of the incentive as compensation. However, the recent VCAT decision now casts doubt on such contracts making it very difficult for landlords to claim back lease incentives in the future.

Queensland Supreme Court says clawbacks amount to a penalty

The original judgement was set during a 2014 case between GWC Property Group Pty Ltd and Higginson & Ors .

GWC Property Group Pty Ltd V Higginson & Ors: Key Takeaways

The case centred around an incentive clawback clause which was written into the lease agreement which stated that the tenant (Higginson & Ors) would have to repay all or part of the landlord's fit-out contribution. This clause would be enacted if lease is terminated for any reason other than the landlord's default.

Such a case should have been straight forward. However, in its judgement, The Queensland Supreme Court deemed this particular clawback clause to be excessive, effectively amounting to a penalty. Such a clause was therefore not enforceable and the court ruled in the tenants’ favour.

In summary of the case, the court stated that it had applied a relevant test to ascertain whether the incentive clawback clause was deemed to be “extravagant and unconscionable” in amount and out of all proportion compared to the loss suffered by the landlord (GWC Property Group Pty Ltd).

Following the judgement, the court stressed that granting such incentives to the landlord would have put them at a great advantage. The impugned clauses would have in effect allowed them to profit from the deal and put them in a stronger position than if the lease had run its course.

The court did acknowledge, however, that the landlord could claim for the cost of reinstating the premises back to their original condition. And for the loss of rental income until the property had been re-let to a new tenant. But the rent-free period negotiated with the tenant was deemed to be the price the landlord paid to secure the deal.

Victoria refuses landlords rights to clawback incentives

Fast forward to October 2019 and the validity of a similar clawback clause was considered by senior members of VCAT.

The case was brought between Finetea Pty Ltd and Block Arcade Melbourne Pty Ltd. As part of an incentive to secure the lease, the landlord (Finetea Pty Ltd) had agreed to a rent-free period and a cash contribution to the tenant's fit out costs (Block Arcade Melbourne Pty Ltd).

A clawback clause was subsequently written into the lease contract which required the tenant to repay a proportion of the incentive in the case of early termination of the lease. After the venture failed the landlord claimed for a rent credit of $335,000 and contribution to the fit-out costs of $200,000.

During its assessment of the case, VCAT members utilised the same “extravagant and unconscionable” test used in Queensland. After the test was applied the tribunal ruled in favour of the tenant and refused to allow the landlord to claim back any incentives used to secure the lease.

In summary, VCAT Member R Walker said; “The Landlord now seeks an order that, in addition to those damages, it should receive back the value of these incentives. That is “extravagant and unconscionable in amount” and out of all proportion to the damage it has suffered. To allow such a claim would be to enforce a penalty.”

In applying the ruling the VCAT Tribunal members further stressed that allowing the landlord to claim back incentives would result in a double recovery thereby unfairly punishing the tenant.

What does this mean for landlords?

While the above cases do not constitute a change in the law, they do create uncertainty about the validity of such clawback clauses. In future, it would suggest that such clauses will be very difficult to endure through the courts and be unenforceable.

While the original GWC Property Group Pty Ltd vs Higginson & Ors case was initially seen as an anomaly. The VCAT ruling sets a precedent which waters down that argument. At the very least courts will seek to use the same test to ascertain whether the level of damages sought is extravagant and unconscionable.

Such rulings also make it more likely that tenants will challenge the validity of clawback clauses in future. This is especially pertinent at the moment as retailers across the country struggle to recover from the economic turmoil caused by the Coronavirus (COVID-19).

Landlords should therefore carefully consider the commercial implications of any incentives offered to tenants in an effort to secure a lease. Because, the recovery of any payments or incentives which were otherwise not payable if the lease took its term are unlikely to be viewed favourably by the courts.

In other words, by adding lease incentive provisions to a commercial lease agreement, the landlord would not guarantee the financial reimbursement of the provided incentive in the case where the tenant needs early termination.

How to add safely add clawback provisions to your commercial lease agreement?

Since incentive clawback are likely unenforceable in court it's even more important to seek professional advice on the provisions you would like to add in case the tenant does breach the lease agreement.

Contact KMB Legal to ensure your clawback provisions are within the law's definition of fair and not excessive, but still doesn't leave you in a less than favourable financial situation.

To learn more about lease incentive clawbacks, please book a free consultation with KMB Legal so you know what your legal rights are as a commercial property owner.

Your entitlements in a motor vehicle accident travelling to work

Sun, 13 Dec 2020 23:53:58 GMT

Your entitlements in a motor vehicle accident travelling to work

Have you sustained injuries in a motor vehicle accident, or a car accident on the way to work? If so, you may be eligible to receive through your employer’s Workers’ Compensation insurer. For most Queensland employers, this workers' compensation insurer is WorkCover Queensland. If you are not at fault in the car accident, you may also be entitled to a compensation claim through the at-fault vehicle driver’s Compulsory Third Party (CTP) insurer.

What’s Involved in Making a Compensation Claim with WorkCover Queensland?

Unlike other insurers, WorkCover Queensland does not operate under an at-fault-based system. So, when you lodge a statutory claim, you do not have to show that you were at fault.

If you can show that you are employed in Queensland, and you had a car accident on the way to work, you may be entitled to a workers' compensation claim including:

• Replaced normal gross wages or weekly benefits (commensurate to your lost wages if injuries sustained)

• Covering of medical and rehabilitation treatment

• Travel expenses covered

• Pharmaceutical expenses covered

• Vocational assistance, and;

• A statutory lump sum payment

You must lodge your workers' compensation claim with WorkCover Queensland no later than six months after the injury sustained or has occurred. If you fail to meet this deadline, you must provide a reasonable excuse for the delay. Having said that, workers compensation insurer WorkCover Queensland is generally quite strict in regard to the six-month limitation period.

What Constitutes a Workers Compensation Journey Claim?

A journey claim comes under quite a wide umbrella. The reason being, a journey claim is not limited to motor vehicle accidents. You may receive an injury while you are walking or riding to work, for instance. Under Queensland law, the journey claim would also be considered.

The workers' compensation legislation also covers any work-related travel you are required to take. That is journeys to other destinations you are expected or required to attend, according to the terms of your employment.

Can the Journey Claim for Workers` Compensation be Denied?

Under certain circumstances, yes. Journey claims may be rejected in the following cases:

• There is a significant delay in receiving the claim workers compensation, without reasonable cause, or;

• A deviation or interruption to your regular journey (i.e. traveling to a restaurant on the way home from work, etc.)

Is There a Possibility of Appealing?

If you should be dissatisfied with the decision, it can possibly go up for appeal. However, this is not always the case. Your prospects of appealing a decision in which a claim is rejected due to journey interruption or deviation, or substantial delay in submitting the application, is left up the WorkCover Queensland.

The likelihood of a successful appeal depends greatly on individual circumstances. These include factors such as the reason, distance, and length of time of the application delay, journey deviation, or interruption.

Can I Make a Common Law Claim?

Under certain circumstances, lodging a Common Law claim may be advised. Have you been injured in a road accident as a direct result of another road user’s negligence? If so, you are also entitled to pursue a common law damages claim compensation against the at-fault driver’s CTP insurer. Common law damages include the following:

• Claim Compensation for pain and suffering (how much compensation?)

• Covering of medical expenses for the injured worker

• Covering of pharmaceutical expenses

• Relevant travel expenses

• Rehabilitation treatment (funded by the CTP insurer upon claims process)

• Losses in past and future income

• Past and future superannuation benefits

• Domestic assistance and care, given by family members and friends

• Paid domestic assistance and care, delivered by service providers

• Covering relevant future medical treatment, and;

• Retaining costs

Is There a Lodgement Date?

Yes, there is. Your common law claim must be submitted to the at-fault driver’s CTP insurer no later than nine months of the date of the accident, or no more than one month of your first consultation with a personal injury lawyer regarding the claim.

What if the Driver Didn’t Have Insurance and we had a car accident on the way to work?

If the motor vehicle accident travelling to work was caused by an unidentified or uninsured driver, you have to lodge a claim against the Nominal Defendant no later than three months or one month following your consultation with a personal injury lawyer.

What Happens if a Workers Compensation Claims is Late?

As the time limits are strict, there are consequences for failing to lodge the claim on time. If your claim is lodged outside of the aforementioned time limits, you have to provide a reasonable excuse for the delay.

Please be advised, there is also a non-negotiable time limit of three years to commence any court proceedings.

Which Entitlements Should I Pursue If I get into a motor vehicle accident?

In some cases, you may be able to claim both statutory entitlements through WorkCover Queensland, as well as common law damages against the other driver’s CTP insurer. In order to be eligible for this, you have to meet certain criteria. To claim, you must have been injured in a motor vehicle accident that occurs between your home and your place of employment.

Should I Pursue Both Entitlements?

Yes. Provided you meet the eligibility criteria, you certainly should. That said, navigating your way through the insurance schemes relevant to your situation can be complicated. Unsurprisingly, there is no blanket approach to ascertaining the correct approach to follow.

Furthermore, the two insurance schemes can often conflict. Medical evidence gathered for one claim can have an adverse effect on the other claim. Therefore, it is essential to seek expert legal advice in regard to your rights and options when considering which compensation entitlements are appropriate for you. At KMB Legal, our team specialises in compensation claims for car accidents, or motor vehicle accidents. If the accident occurs between your home and your place of employment, we will help you through the entire claim process.

Can You Assist me in Making the Claim?

Yes, we certainly can. At KMB Legal, we believe you should not have to navigate a complex insurance claim on your own. That’s why our professional team is ready to guide you through the entire process. We will advise you and walk you through every step of the way.

Have you sustained injuries in a motor vehicle accident between your home and workplace? If so, look no further than KMB Legal. We are your motor vehicle, claim experts. Get In Touch Today

What is a motor vehicle injury and who can claim?

Wed, 25 Nov 2020 02:43:24 GMT

What is a motor vehicle injury and who can make the claim?

As the name implies, a motor vehicle injury can be experienced in any type of vehicle, including a bus, bike, car, motorcycle, truck, train, or any motorbike accident.

Have you sustained an injury in a motor vehicle accident due to another person's negligence? KMB Legal's lawyers can help you obtain all the compensation and damages you're legally entitled to. Contact us for help if you're:

• An injured people by a vehicle

• A cyclist injured person by a vehicle in a road accident

• Injured while driving

• Injured as a passenger

• Injured while in a motor vehicle accident involving livestock

• Injured while using public transport

• Injured in a motor

If you can correctly establish the "at-fault" vehicle, you can make a claim against the Compulsory Third Party (CTP) insurer of the said vehicle. In Queensland, all drivers are obligated to have CTP insurance. As such, all drivers are liable for personal injury claims made by fellow road users.

If the "at-fault" vehicle can't be identified, is not registered, or is not covered by CTP insurance claims policy, you can claim as a Nominal Defendant against the State Government. However, strict time limits apply to this, so ensure you call a police officer or consult a lawyer immediately. If you were partially "at fault", you are still eligible to claim a somewhat reduced amount of compensation.

We advise you to consult a lawyer before signing documentation or responding to an offer from the other party. If not, you may forfeit your right to claim compensation, so contact KMB Legal immediately following your injury claim.

What constitutes motor vehicle accident claims?

If you incurred an injury due to a motor vehicle accident (i.e. a car, truck, motorbike, train, lorry, boat, or any other motor vehicle) and it was caused by another person or you're only partially responsible, you have the right to claim. This is referred to as a motor accident claim. As it's compulsory for all registered vehicles in Queensland to have CTP insurance commission, the claim proceeds against the CTP insurer of the "at-fault" vehicle.

As previously mentioned, however, if the accident is caused by an unidentified vehicle (aka a "hit-and-run" or the vehicle is unregistered), the claim is made against the government insurer (Nominal Defendant).

How does the motor vehicle claim process work?

The claim is made against the compulsory third party insurance (CTP) insurer of the "at-fault" car accidents. In Queensland, all vehicle owners are obliged to have a compulsory third-party (CTP) insurance policy attached to their vehicle's registration. In cases when the "at-fault" vehicle involved is not registered, a purpose-built government body - known as the Nominal Defendant - stands in the place of the third party insurer.

What are the associated time limits?

To meet these guidelines, you must lodge your insurance claim within nine months of the accident date, or within one month of consulting a lawyer with legal fees. If you don't do so, you can still lodge a claim, however, you need a plausible reason for the delay. In addition, if you fail to commence court proceedings within three years of the date of the accident, you permanently forfeit your right to claim.

It's important to keep in mind that if you can't identify the "at-fault" vehicle, you should contact the KMB Legal team immediately. If a car can't be identified, or its registration has lapsed, you only have three months from the date of the accident to lodge all associated claim forms.

What can I claim for?

You are allowed to claim for the following items:

• Past income loss

• Future loss of income

• Out of pocket expenses (i.e. medical expenses, medication, surgery, physiotherapy, chiropractic treatment, and hospitalization)

• Pain and suffering

• Any essential assistance or care you have needed or will need in the future.

After lodging your claim form and we've been informed by the insurance company that they are liable for the accident that happened, we can secure the necessary funding for rehabilitation costs from them. This will result in less financial strain for you at a time when your financial pressures are already significant.

Am I eligible to claim after motor vehicle accidents?

Provided you can prove you are not at fault or the accident was partially your fault, you are eligible to claim damages. You may also claim for damages under the following circumstances:

• If you were a passenger either in a car accident or on a motorcycle.

• If you were a pedestrian or were on a bicycle and were hit by a car accident, motorcycle, truck, or another registered motor vehicle.

• If you were either a driver or passenger and the motor vehicle crash or car crash was a result of a defect in your vehicle.

As you can see, there are many circumstances under which you can lodge a claim. However, it's vital that you call or email us for an initial consultation, during which we will discuss your rights.

How much will I receive from my insurance company?

The overall worth (i.e. quantum) of your claim is dependent on how the motor accident, car crash, or accident has affected your life, and most importantly, your capacity to work. If the impact on your life was minimal and you recover from your motor vehicle injuries quickly, then your claim will likely be modest. However, if your injuries severely impact your ability to perform your job, or require you to change employment, your claim will be much more significant.

Of course, there are a variety of factors that influence the final settlement you receive. The reason being, there are many "heads of damage" you can claim for. The team at KMB Legal are injury insurance claim experts, so we can adequately apprise you of all possible avenues for obtaining workers' compensation. This is why we consider obtaining legal advice essential.

What happens next?

You should make an appointment with us as soon as possible. It's essential to speak to a lawyer before signing any documents from the other party or their insurer. If not, this can impact your right to claim. As time limits apply to motor vehicle accidents claim, you should speak to our personal injury lawyers right after the car crash, or accident scene. They can inform you of your rights and the claims process.

Seek legal advice

By law, you're entitled to receive damages for fatal injuries caused by the other driver or another person fails. For further information, contact KMB Legal today for legal services in Western Australia, your car accident lawyers. Get our contact details for a free consultation regarding your legal rights.

The majority of claims are covered by our no win, no fee policy legal costs. Put simply, you only need to pay our professional fees if the judgment is made in your favor.

How social media affects compensation claims

Thu, 19 Nov 2020 23:20:51 GMT

How social media affects compensation claims

Facebook posts or any social media posts are just as much a normal part of the average person’s day as a cup of coffee in the morning, with thousands of people's everyday life logging into social media account or social media pages, and apps before they’ve even gotten out of bed in the morning.

In fact, social media posts are such a widespread phenomenon that it’s also become a staple within the law firm and courtroom too. Social media compensation claim contents and posts have been directly used by the personal injury lawyer to hire surveillance evidence of a legal matter, legal advice, legal cases, legal rights, including Super/TBD and workers compensation claims.

So, when it comes to social media posts, and other social media content, how much is too much? Or when do you have to avoid posting a work accident? When it comes to advising clients on what they should or shouldn’t be posting about on their feeds, it’s always better to err on the side of caution.

That potentially damage, social media usage can have a direct impact or can cast doubt on the outcome of a slip or fall, workers compensation claim payout, CTP, and even Super / TPD claim. Even posts that seem completely innocent to the untrained eye can potentially affect, or have a knock-on effect that you wouldn’t expect.

Why do social media compensation claims matter?

One of the best example of why social media matters are the case of Digby v The Compass Institute Inc & Anor [2015] QSC 308 . In this relatively recent case, it was established that insurers don’t need to inform the plaintiff when it comes to the use of all social media data.That includes just about anything you post on Facebook records, Instagram, or TikTok, as well as countless other social platforms. This means that evidence could be being gathered without your knowledge, and without the knowledge of your client.

Because of this precedent, the recommendation for any client who is active in the social media world is to step back and take a break or avoid posting anything at the moment. But if your client can’t or won’t go cold turkey – whether for work or personal reasons – there are still some steps you can take to safeguard their online presence and ensure they aren’t undermining how much compensation claimed they get. Some of which may be perfectly obvious, and others that are far less pronounced than you’d expect.

What should clients not post on social media about personal injury claims?

For clients that can’t part with social media permanently, or simply want to still be active online, certain considerations must be made during the time their compensation claim is active.

Social media can be a powerful form of evidence in many modern claims, and this should be stressed alongside providing guidance on what clients should and shouldn’t post about themselves online.

While this is not an exhaustive list, here are some of the major areas to consider when it comes to what your clients should not be posting online:

Evidence of strenuous activity that is out of line with their personal injury claim

Whether it’s doing the backstroke at the local pool, skiing down a mountain, lifting their kids, or certain activities with any photographic evidence of strenuous activity – both visual and verbal evidence– even a single photo on social media that goes against your client’s claim is valuable evidence and can cause damage that can’t be fixed. If your client’s pending compensation payout claim relates to a personal injury compensation claim or pain that prevents activities, it’s vitally important that compensation law and personal injury compensation claim, or compensation payout doesn’t contradict that statement in the public eye.

Contradictory to medical negligence information

Compensation claim relating to medical conditions and pain, or any online contradictions claim depends on a serious problem. Think of someone that needs their arm in a sling for a proven track record of eight weeks appearing at a family law or family member party without one, or someone who needs a neck brace taking pictures without it soon after a motor vehicle accident, or other accident.

Admitting fault or liability to personal injury law

Whether you’re sending content on Instagram Stories or posting to Snapchat, social media is never 100% private. That means a compensation lawyer or personal injury lawyer and client should not make any statements regarding blame and contradictions in possible liability, and in everything they say. If possible, personal injury lawyers should not refer to the incident at all in any way, shape, or form.

Narratives or information on the compensation claim legal processes

Taking to social media friends post about – or complaint about – your lose legal professional privilege, or seeking compensation claim. As with admitting liability, not talking about legal representation processes at all is the best course of action on social media when going through an active claim.

The client's current location or locations where they will be

Professional standards legislation advice is twofold. Not only can location makes information allow insurers to track down your client location thru later date on social media accounts, but where they feel natural at that current moment, it can contradict their personal injury claim. Especially if they have said to their compensation lawyer, or compensation lawyers that they cannot travel for long periods of time, or they cannot leave their home as a result of permanent disability, less disability, or other psychological hardship.

Frequency and quality of content

Hundreds of Stories a day or professional-grade content can suggest that a client claim is perhaps less severe than they are suggesting. This is especially true where social media is a full-time job or part-time line of work for the client if they have claimed an inability to work. Existing pre-created footage or campaigns should be stated as such, and you may want to warn your client they may be used as evidence.

Content and posting that differs from their emotional state

It can be tempting to put on a positive face on social media, but this can be risky for a client who just had an accident, it may have scheme-approved claims based on emotional content, psychological harm, especially surrounding anxiety or depression. Own posts, where they appear carefree or happy post, may appear to contradict their claims, no matter how fake a smile is.

What is the best thing to do when it comes to social media posts?

Without evidence, insurers don’t have anything to use against you. Our advice would always be to tell the client to abstain from social media friends where it is possible, or avoid social media damaging – and warn them of what can happen if they continue to post or make content that contradicts their compensation claim. Unfortunately, posts your clients may think of as innocent can easily be twisted or looked at in different ways to pick apart an otherwise strong claim to the other party.

In addition, request permission to client to stay off social media (though of course they can scroll and view others’ content if they like), you may want to consider extending that ban to friends and family members. The less your client is on social media in any form, the less that can be said. It can be tempting to gossip or talk about accidents or psychological injuries, but keeping all those details offline can help to strengthen your case – and prevent any social-media-related cracks from appearing.

Performing due diligence when purchasing a business

Thu, 12 Nov 2020 02:13:54 GMT

Performing due diligence for buying a business

The due diligence process for buying a business is extremely exciting and can open a world of financial possibilities. However, it also takes a lot of work; particularly regarding its internal operations (i.e. structure, established business model, intellectual property, target market, and more) before signing the business sales contract.

Due diligence process explained

Put simply, the due diligence period is the process of conducting thorough research into the business you plan to own. This ensures you understand the risks associated with company ownership. There are some important factors to keep in mind when performing due diligence to ensure you make the right decision.

How the existing established business is structured

The most common business structures include sole proprietorship, partnership, and limited liability corporation (LLC). The type you choose will depend largely on the type of business you're purchasing. In addition, the structure you choose directly impacts your business and tax obligations. Most importantly, the structure also determines the sales process you and the owner must follow.

Prior to purchasing, it's vital to know the business structure, so you know exactly what to expect. For instance, you may purchase half of a partnership. Or, you may be buying shares in a liability limited publicly-traded company or even part-ownership of an LLC. Understanding how these business types operate will ensure a smooth transition.

What is the existing business' history?

Another important aspect of due diligence investigation is understanding the business' history. While researching the company, you will need to find out information such as:

How long has the business been in operating in professional standards legislation and legal proceedings?
How many key employees did the business have?
What is the employee benefits tax returns or employment contracts?
How many owners has the business had?
Who is its current owner? And;
Does the business have any financial due diligence clause or outstanding liabilities and is litigation pending?
What are the key assets, asset ownership, or business suitability?
How does the business perform?
Are there any similar businesses competing?

Failing to check may result in inheriting unwanted legal issues. So, remember to ask professional advice regarding the current owner for all accounts payable and receivable, income statements, and profit and loss statements. Also ensure you enquire about all utility accounts, current business loans, and other lines of credit.

Research existing contracts on intellectual property

Any existing business you purchase will have current valid contracts, binding contract, or supply contracts (i.e. with suppliers, technicians, freelance contractors, and others). Part of your due diligence in finding out whether these contracts will be transferred to you upon sale depending on how much money it cost. Once the sale is complete, all of these contracts are your responsibility. So, it is crucial to understand the details of each, as well as your rights and obligations before signing the contract of sale. It's very important to understand your obligations toward each existing client. The key reason for this is the profit you generate from them will keep the business running.

Who are the business' current employees?

Regular business operations must continue uninterrupted during the sale and transfer of the business you are buying. This is especially important if the company has current employees who you intend to keep on the payroll. If you plan to do this, get confirmation from the seller that the retention of current employees is part of the contract. If this is the case, ensure you understand employee rights and obligations, as stipulated in their contracts. This information will prove quite useful if you ever need to perform a business restructure and eliminate redundancy. It's also handy should you ever need to lessen your employee numbers (i.e. due to a decline in sales or falling profits, etc.).

What current lease arrangements are in place?

When researching a potential business purchase, your last act of due diligence is perhaps the most important. It is imperative that you understand whether there are current lease arrangements for the business premises. As part of most sales contracts, lease agreements are usually transferred via a deed of assignment to the new owner. After the sales process is complete, you must understand the terms of the lease on your building, office, or warehouse.

Generally speaking, existing leases do not have a stipulation allowing for term changes, even after ownership is transferred to a new party. So, before agreeing to the purchase terms, make sure you review all existing lease terms carefully. And, only if you are satisfied with these terms should you continue the transfer of ownership process.

Are there any warning signs to look out for?

The simple answer is: "yes". However, identifying these warning signs is now much easier thanks to thorough due diligence. Conducting due diligence will help you evaluate the risks and merits associated with the type of business you plan to buy. This process will require plenty of time and patience on your part. Yet, carefully reviewing all the pros and cons will ensure you make the right decision for you.

In spite of this careful study, there are some clear warning signs which will show you that a registered business name is not worth your time or money. We advise you to think twice if the seller does any of the following:

They do not disclose the exact reason they are selling their registered business
They are not forthright in providing you with: a valid business license and permit, any existing distribution agreements, client agreements, and lease agreements, and current key documents copy of income and profit and loss statements
Decline to provide you with information about their contractors, suppliers, and estate agent
Are currently involved in court proceedings
Have a questionable credit record history or questionable purchase price, or;
They persuade you to immediately deal quickly before giving you any of the above information.

It is important to note that this information should be freely given to any potential buyer. You should not have to ask the seller to provide it; it is part of their obligation.

Checklist for the business due diligence process

Performing due diligence and looking for any of the above warning signs is absolutely essential. However, the Queensland Government provides an added layer of protection through its comprehensive due diligence checklist for aspiring business buyers.

Some of the checklist features include tax and legal matters (i.e. physical assets valuation, government requirements, and stamp duty), financial statements, and sales information (including balance sheets, bank statements, and business records).

Other features include industry and business due diligence operation details (including seller training, procedure manuals, and industry deregulation) and business assets (i.e. cash, stock, and equipment). For the complete Due Diligence Checklist visit: ( business.qld.gov.au/due-diligence-checklist ).

Are you ready to take the plunge into business ownership? If so, contact KMB Legal today for comprehensive advice.

7 Essential Tips for Successfully Purchasing Commercial Property

Wed, 04 Nov 2020 05:06:25 GMT

7 Essential Tips for Successfully Purchasing Commercial Property

An advantageous property purchase can absolutely transform the success of your business. Equally, a poorly considered or inadequately researched transaction can result in a costly disaster. Unfortunately, even experienced business owners can end up making a dodgy purchase if they don't get the right professional assistance.

KMB Legal offers a complete conveyancing service for industrial property, commercial properties, commercial investment, and retail property, ensuring that all appropriate checks and procedures are completed prior to purchase. Using our extensive experience, we've put together seven considerations to take into account when planning to buy commercial properties.

Use professionals to draw up contracts on the commercial property market rent and commercial property investment

If you've previously bought an office building, own business, then office space, or residential property, you may feel that putting together a contract for a commercial real estate property purchase is going to be no more complex than residential conveyancing. Unfortunately, retail space is not the case. Buying Commercial property investment frequently requires detailed, complicated investment property contracts.

In particular, the "Special Conditions" (the customized part of the contract that deals with the minutiae of your specific purchase) need to be drafted with care and comprehensive knowledge of the commercial investment. It is actually illegal for a commercial agents or some other unqualified professional to draft complex market factors to the commercial property owners.

Use a professional legal team to work on your contract in order for it to accurately reflect every aspect of the sale, minimizing the risk of unpleasant surprises further down the line.

Residential property and commercial properties search matter!

Buying commercial property involves a series of searches that need to be completed in order to get a clear picture of any outstanding debt, population growth locations, rental income, or challenging circumstances that relate to the property. Buying a commercial property outstands land tax depreciation schedule. For example, buying commercial property will be transferred to you, the new owner if it's still outstanding at the point of purchase.

Searches are also needed to check for potential threats and hazards (for example, searches can help to quantify the risk of subsidence or flooding). Making sure that all the appropriate searches for commercial demand are carried out needs to form part of the conditions included in the contract. Searches provide the vital information needed to make a sensible purchasing decision on residential properties.

The greater the number of searches that are carried out, the easier it is to have an accurate understanding of the pros and cons of your chosen property.

Going concerns and Goods and Services Tax (GST).

If a commercial property isn't sold as a "going concern", the seller will be liable for GST. If both vendor and purchaser agree that the property is a "going concern" (a business that is fully operational and turning a profit), it may be possible to avoid GST being paid on the transaction.

For this to happen, both parties needed to be registered for GST, and a lease needs to form part of the sale transaction. Note that you may be challenged on the validity of the "going concern" justification for not paying GST by ATO.

To minimize the risk of a subsequent GST clawback by ATO, we suggest making sure that appropriate safeguards are inserted into the contract, and also obtaining professional advice on whether your proposed purchase is likely to qualify as a "going concern".

Do you know who your buyer is?

Although it may seem obvious which organization is interested in purchasing your commercial property for infrastructure development. It is vital to be completely clear on the property management options when buying a vastly different commercial proposition.

Although the difference between a trust, a limited company, or a partnership may appear negligible in terms of their interest in the property you've got on commercial sales, the reality is that there are growing consumer demand and differences in the way these entities operate when it comes to:

legal constraints
lease terms, and leasing arrangements
retail sector
rental income
taxation
economic factors;
and stamp duty.

Entering into a contract with an organization without being fully conversant with the way in which it operates could leave you severely out-of-pocket. Why risk it? If in doubt, always use a legal professional to establish the nature of your purchaser.

They will also be able to put in place suitable safeguards in the contract to prevent any financial kickbacks later on.

What does your lease state?

If the commercial premises you're considering buying (or selling) has a lease attached to them, it's important to be clear on how this will affect the commercial premises, when a change of ownership is being considered. Leaseholders have a considerable number of rights enshrined in law.

Depending on the leasing agreement, the existing tenant may legally have the right to be asked first if they want to purchase commercial property before it's put on the general residential market rent. They may also be a "fait accompli" when the property ownership is transferred.

Lease arrangements are notoriously complex, which is why it's crucial that all parties are clear on how a lease affects the sale.

Capital Gains Tax Benefits

Capital Gains Tax (CGT) is a perennial headache for commercial property buyers. At its most basic, CGT is calculated by subtracting the sale price from the original purchase price, plus upkeep expenses for the duration of the property ownership.

Different entities pay varying amounts of CGT. Given the significant sums that may be involved, we strongly suggest using professional accounting services to calculate the potential for CGT, as well as to come up with strategies that could keep CGT payment to a minimum.

Goods and Service Tax (GST)

It's not an urban myth that a purchaser presumed that the cost of a commercial property was inclusive of GST, whilst the vendor believed the purchase price to exclude GST! After a protracted court case, it was agreed that the property was, in fact, sold exclusive of GST.

This meant that the buyer was responsible not only for paying for the property but for the (not insignificant) GST bill as well! Don't let this be you. The clarity in the terms of the property transfer contract is absolutely essential if costly errors like this are going to be avoided.

KMB Legal has seasoned legal professionals on hand to take you through every stage of the commercial property-purchase process. Get in touch now to find out more about the benefits that legal counsel and representation can bring, or to tell us more about your intended commercial property purchase.

Your Step By Step Guide to Buying a Business

Tue, 27 Oct 2020 23:58:41 GMT

Your Step By Step Guide to Buying a Business

Buying a business is an exciting prospect. It enables you to be your own boss and experience financial freedom. And, when purchasing an existing business, you'll benefit from an established business client base, experienced staff, and relationships with suppliers. Yet even with these systems in place, people often neglect the legal aspects of business ownership.

Consequences of inadequate preparation

If you jump into established business ownership too quickly, you may encounter some nasty surprises. For instance, the previous owner may alter the contract terms without notice. Or worse, after buying the business, you may discover hidden debt. This financial burden can lower or eliminate your projected profits entirely. To avoid this, here are five crucial points to consider when buying a business in Queensland.

Step 1: Setting out key terms on intellectual property

Prior to entering into any own business agreement, we recommend clearly outlining the key terms by which you and the other party will abide. Ahead of the agreement is a document that outlines key terms both the seller and prospective purchaser require in the contract of sale. For instance, heads of agreement may include the settlement date, deposit amount, when it is to be paid and the overall purchase price, and conditions, like finance and the transfer of the lease.

However, unlike a formal contract of sale, it is a non-binding document. As such, a disclaimer is included which states that the heads of agreement are not binding until each party goes through with the sale of the business broker contract. A key advantage of the heads of agreement contract is it significantly reduces your legal expenses.

It is also very helpful to negotiate the terms of this contract in advance with the business seller. By doing so, it is much easier for your lawyer to draft a final sale of a business contract.

Step 2: Undertake due diligence on established business

This is a crucial step when purchasing a Queensland-owned small business. Put simply, due diligence refers to thoroughly examining all business documents, profit margins, existing customers, existing employees, equipment, business's assets, business's customers, and the premises themselves.

When performing due diligence, you ensure all records, Australian credit licence, financial situation, registrations, tax implications, tax obligations, and permits are current and future demand, study business plans, and operations, examine the company's financial statements, lease agreements, and intellectual property. If you're a prospective buyer, we recommend studying the industry landscape, its competitors, and marketplace dynamics.

Conducting this research enables you to understand the business operations after you've signed the contract but before the final purchase. We recommend looking into the following: the lease, council and development approvals, employment and 3rd party agreements (i.e. supplier agreements), and business finances. If you discover a problem, due diligence allows you to walk away from the sale.

It's also advantageous to check for specific council requirements. Particularly, whether you're permitted to run the business outside its premises. Queensland leases require you to investigate if the premises can be used to operate your business.

Step 3: Reading your own business contract carefully

An aspiring business owner runs into trouble because they have not read the contract properly. They mistakenly believe they're signing a "standard contract"; however, these contracts don't sufficiently protect the rights of buyers or sellers. Before signing any document, ensure you consult with a solicitor. Studying the contractual terms, your solicitor ensures it covers the essential elements of purchase and/or sale. These include:

Transferring the suitable business name, lease, along with other vital business assets, licenses, and permits
Current stock prices, and any fittings and fixtures which are part of the sale
Including relevant warranties and representations regarding the business' sales key performance indicators
Appropriate security measures covering each party's performance of their contractual obligations
Goodwill. This refers to a figure placed on any intangible business advantages the business has gained thus far. Such advantages can include reputation and connections within the business community. These qualities separate the value of the new business from an existing company. Also, if all current customers do not patronize the business brokers after the sale, clawbacks and retentions are included. And;
A reasonable restraint of trade is placed on the vendor to minimise the threat of direct competition from neighbouring businesses.

Step 4: Transfer your lease from existing business

Many business purchases require you to take on a lease. So, it's crucial to ensure the landlord will sign a said lease over to you. One of the most common types of lease types is retail. Before the landlord can give you consent, the requirements set out in the "The Retail Shop Leases Act 1994 (Qld)" must be followed. According to the Act, the landlord, assignor (seller), and assignee (buyer) must adhere to disclosure requirements.

As such, the assignor and assignee have to provide separate disclosure statements at least seven days before attaining the landlord's consent. The landlord is expected to give the assignee a disclosure statement, along with a lease agreement, seven days before giving their consent. Along with these requirements, the assignee must also:

Sign a joint statement with their lawyer, which acknowledges that the assignee attained legal advice regarding the lease, and;
Sign a similar document with their accountant, acknowledging they received sound financial advice.

Step 5: Legal expenses relating to the business

In the excitement of taking over a business, many people forget about the myriad of associated costs and legal requirements. The good news is, you do not have to navigate this minefield alone. The KMB Legal team is highly experienced in all facets of buying, selling, or establishing a new business. Consulting our team early on in the process will prevent future problems which may arise while you're operating the business or attempting to sell it.

To ensure you are prepared, your solicitor can advise you on such business law issues as:

Local and state government expenses
Fees associated with your established brand and trademark registration
Licensing and permit expenses, and;
The transfer of duty fees involved in buying an existing business

Are you ready to escape the 9 to 5 grind and be your own boss? We have a team of Business & Commercial Lawyers here to help you. Our focus is to help you to make the purchase process as smooth as possible. Contact us today.

Protect Your Best Interests with a Property Caveat

Thu, 22 Oct 2020 23:17:31 GMT

Protect Your Best Interests with a Property Caveat

The demise of a long-term relationship can be one of the most stressful things you will experience. Unsurprisingly, caveatable interest can leave you utterly distressed and grief-stricken. Add your current legal obligations to these swirling emotions, and the complex, yet essential division of your assets can seem an impossible task. Fortunately, the legal advice of the experts at KMB Legal is ready to help you with all property land act and law matters.

Whether you have been married or in a de facto relationship, most partners have a scheme-approved caveatable interest in a property they have shared. Despite this, your name may not appear in the property information office title. There are several reasons for this. These include:

* If your spouse bought the property in question prior to your relationship, and;

* Your spouse may have inherited the property from a relative; or

* You and your spouse may have agreed to register the property in one debtor's property name based on advice from your financial advisor.

One of the options available to protect your caveatable interest in the property is to lodge a caveat.

What if my name does not appear on the legal or equitable interest title?

As mentioned previously, your name might not be on the property title. In this case, you should rectify the situation immediately if you believe your former spouse intends to deal with the property before your property settlement is finalized.

If not, your former spouse is entitled to make decisions about the property without your consent. Fortunately, a legal caveat gives you a voice in the property’s future. It enables you to protect your caveatable interest if your former spouse elects to sell, transfer shares to another party or use the property as equity to obtain a loan agreement.

How exactly does a scheme-approved caveat protect me?

Simply lodge a caveat, a property caveat is a legal notice, addressed to your state or territory's Registrar of Titles. By lodging, this document, the caveator (you) safeguards their caveatable interests in said property. In practical terms, when the caveat is recorded on the property title, its registered owner is forbidden from selling or making other arrangements (i.e. loan agreement, selling, transferring, further encumbering, etc.) with the property, until and unless the caveat is removed.

From the date of lodgment, lodge a caveat remains on the property's title for three months. Throughout this period, you are legally obliged to commence court proceedings and advise the Registrar of Titles that these proceedings are taking place.

If you fail to do so, your caveat will no longer be valid and will lapse. The registered proprietor will then be able to deal with the property without your consent.

What should potential buyers know about a caveat?

In Latin, the word "caveat" literally translates as: "let him beware". As such, when on a property title, it should serve as a red flag to any potential buyer. By conducting a simple title search via the title registry, they will discover that someone else is interested in the property they wish to protect.

How do I know if I have a caveatable interest?

While on the surface it may seem simple, this is quite a complex legal question. Therefore, we strongly advise you to discuss your needs and concerns with the professional standards legislation at KMB Legal.

Firstly, to register a caveat on your property, you must establish a "caveatable interest". And, contrary to popular belief, the proprietary interest is not established by default if you have been married or in a de facto relationship.

However, in family matters like this, you can establish a caveatable interest in the property in other ways. The most common is by demonstrating the "financial and non-financial contributions" you have made to the "acquisition, improvement, and maintenance" of the household throughout the relationship.

During the relationship, you may have contributed by making mortgage payments, for instance. Or, you may have contributed to the property in non-financial ways, or in a reasonable cause. These can include: carrying out housework, undertaking renovations, or making improvements to the property. And, if your name is absent from the title, these contributions will not be reflected within it, however may still give rise to an equitable interest in the property law.

When should I seek legal advice?

When arranging property caveats, we have seen cases in which significant non-financial contributions are sufficient to give rise to caveatable interest. This includes tasks such as caring for your children. As there are substantial risks involved in lodging a caveat, we advise you to seek legal counsel.

At KMB Legal, we will walk you through the entire process. We will advise you on the best course of action to protect your legal rights. If you do have a caveatable interest in your property, our team will prepare all the necessary documentation for you, and ensure you provide your unregistered interest in the property and explained it in detail.

Are there risks in lodging a caveat? If so, what are they?

Registering a caveat is not without risk. For instance, it may be discovered that the person lodging the caveat has no caveatable interest in the property. As a result of the action, the property's legal owner may suffer substantial financial loss. If this is the case, the owner is legally permitted to recoup those losses from the person who initiated the action.

It's also important that you are aware the legal owner can pursue certain legal avenues in response to the caveatable interest. If they do not wish to wait three months for the court proceedings, they are legally entitled to compel you to initiate proceedings within a fortnight. In addition, the owner may also exercise their right to apply to the Supreme Court to remove the caveatable interest.

How can a caveat be removed?

There are various ways a caveatable interests may be removed from a property title. These include:

* It is withdrawn by the purchaser's interest who lodged it;

* If the caveat lapses, due to court proceedings not commencing within the specified timeframe;

* The Supreme Court orders the caveat to be removed, or;

* The Registrar cancels the caveat

Are you currently going through a divorce or separation? If so, professional standards legislation may have concerns over the sale of the property without your consent. However, you can prevent this. To lodge a caveat, simply call or email the skilled KMB Legal team today .

The Divorce Process in Australia - Divorce Questions Answered

Tue, 13 Oct 2020 02:02:21 GMT

How to get a Divorce - Divorce Questions Australia

In this article we will answer your most common questions about the divorce process in Australia and explain the 5 step process in how to get a divorce.

The divorce process in Australia is not what you think.

Let me explain.

Many people looking to get a divorce believe it includes formal separation, property rights and parenting duties. Actually, divorce is the most straightforward aspect of the separation. It’s entirely separate from resolving financial issues, child support and dividing property.

Common Reasons for Divorce in Australia

While every divorce is unique to each relationship, in Australia there have been some more frequent reasons people apply for a divorce.

The Australian Divorce Transition Project asked people “What would you say was the main reason for your marriage ending? And here are the key results from their findings:

27.3% said “Communication Problems”
21.0% said “Incompatibility / ‘drifted apart’”
20.1% said “Your or former spouse had an affair”
14.8% was because of “Abusive Behaviours”
12.7% was because of “External pressures” like financial problems, work, mental health or family interference
3.9% was for other reasons.

Note: It should be noted that in Australia you don’t need a specific reason to apply for a Divorce. The only grounds for a Divorce in Australia is that there are irreconcilable differences between you and your partner which is made clear by at least 12 months’ separation. In Australia we operate under the “no-fault divorce” act established in the Family Law Act 1975 .

How The Divorce Process Works in Australia

Being granted a divorce merely means the parties are no longer legally married. Chiefly an administrative process, either one or both parties must apply to the Family Court to obtain a divorce order. Please note, depending on your personal circumstances, you may be required to attend a short hearing.

The divorce order also incurs other important consequences in Family Law. The most important of which are spousal maintenance and property settlement. Additionally, it also triggers a statutory time limit to apply to the Family Court for spousal maintenance or property orders.

How to get a divorce in Australia: 5 Step Process

Step 1: Prepare your divorce papers

The first step of the process is to prepare your Application for Divorce document. You can either choose to file a joint application (you mutually agree) or a sole application where only you need to sign the application.

Do I need a lawyer to file for a divorce?

You can hire a private lawyer to prepare your divorce application and be your advocate during the divorce process, they will help you submit your divorce application and guide you through the legal steps leading up to the Divorce order from the Family Court.

A good private lawyer can provide legal assistance to your exact circumstances.

But you can also submit the application yourself, read the full guide on the Federal Circuit Court of Australia website.

Step 2: Sign your divorce papers

Once your divorce application is correctly prepared you will need to sign the document in front of a qualified witness. In Australia, the best thing to do is look up where your local Justice of the Peace is available to be a witness. If you are doing a joint application, this document needs to be signed by both parties.

Step 3: File your divorce application to the Family Court

Once the Divorce papers are filled and signed by a qualified witness, you’ll need to gather other supporting documentation like your marriage certificate.

Once you have done that you can submit your application at your local Family Court electronically by registering with the Commonwealth Courts Law Portal .

There is a divorce filing fee payable at the time of filing. You may be eligible for a fee reduction under certain circumstances.

Step 4: Receive the sealed documents & serve spouse documents (if needed)

Once you submit your Divorce application and the fee has been paid, the Court will begin to process your application and you will also be assigned a Court hearing date. As a part of the “processing” of the documents the Court will officially stamp the original document, which can be accessed through the Commonwealth Law Courts PortalThese stamped documents are called “sealed” documents.

The Court files away the original sealed application for records. In the case of a joint application, one of the sealed photocopies are sent to you and the other is sent to your spouse. In the case of a sole application, you will have to arrange to “serve” a sealed copy to your spouse (soon to be ex-spouse).

You will need to “serve” (deliver) the document to the other party at least 28 days before the court hearing date, unless your spouse is overseas. In that case, you need to serve your spouse 42 days before the court hearing date. There are specific court rules and forms required by the court for the “serving” of sealed divorce papers.

We recommend using a registered process server (also known as a service agent) to deliver the document to the other party. Otherwise, any person over the age of 18 years can personally serve the documents. You are not able to serve the documents yourself.

You must then file documents proving service upon your spouse. Divorce service kits can be found on the Family Courts website .

Step 5: Attend the court hearing

After the divorce application has been processed by the Family Court, you will receive a Court Hearing date. When you attend the Court Hearing, assuming all the required information is supplied, the Court will issue a Divorce order which will be in effect one month and one day from the hearing date.

It should be noted though, that there are circumstances where you are not required to attend the Court hearing. But you must attend the court hearing specifically if you filed a sole divorce application or there are kids under 18 involved. There are also other circumstances where you must attend so make sure you are aware of your obligations about attending the Court hearing .

Divorce Frequently Asked Questions (FAQ) in Australia

How to submit a divorce application in Australia?

There are a number of ways to submit a Divorce application in Australia.

A private lawyer can help you fill out the application and submit it for you.
You can also download and print off the application if you intend to do-it-yourself.
You can also apply online through the Commonwealth Courts Portal, read this full guide .

Check out the full step by step Australian Divorce process above.

Divorce in Australia, who gets what?

This is a common misconception. Division of physical & financial property doesn’t happen during the Divorce process in Australia. After or before the divorce process is official you can apply for spousal maintenance and/or a property/financial order.

It is generally advisable to do so before the divorce to ensure you do not miss the time limit of 12 months to apply for property orders if negotiations fail.

It should be noted though, that time limits apply for matrimonial property settlement. You have only 12 months from the date of your Divorce to settle your property matters or apply to the Family Law Courts for orders. De facto couples have two years from the date of separation to do the same. To ensure you don't miss the time limit, you should obtain legal advice without delay.

Spousal Maintenance

But who gets what? In the case of Spousal Maintenance, the amount of financial support depends on what the main income producing party can afford.

Property Order

In the case of a property order, division of assets is usually based on an agreement between the two parties or after a court hearing. A property order can also be used for de-facto relationships maintenance.

This can be a complex topic, but the court takes into account:

The value of all the property of both parties
Assess the contributions of the parties (not just financially, but non-financial contributions such as caring for children or other responsibilities is also considered)
Assess the needs of each party
Identifies a just and equitable division

A 50/50 split that most of us assume is not actually common. It can take months to get all the information required for the court to make a fair and just decision.

If one of the parties is a business owner or part business owner the value of their share of the business will be considered as a part of the asset pool and a heavily negotiable item in the property settlement as there are many factors to consider. In this situation it is highly advised that you seek legal and financial advice.

How much does a divorce cost in Australia?

Submitting a Divorce application to the Family Courts does have a fee associated with it. Check out the exact figure under point 5 on the official how do I apply for a divorce guide. If you decide to also seek legal advice there will also be costs associated with the independent lawyer you choose.

Can divorce be denied?

The only reason a divorce can be rejected is if there was a procedural error or mishap in the application process. For example, there was something that was filled out incorrectly, or there was information that was not disclosed. Or perhaps the sealed divorce order was not “served” correctly. A divorce can also be denied due to jurisdictional issues - ie if the both parties are not Australian residents or it has not been 12 months and 1 day since separation.

To avoid your Divorce getting denied ensure you contact a divorce lawyer who can guide you through the process.

Does it matter who files the divorce application?

There are two types of divorce applications:

Joint application where both parties sign and have a mutual agreement
Sole application , where only one party signs

In the case of a sole application, the spouse who initiates the divorce process will control how fast the proceedings move and will be responsible for paying the divorce fee upon submission. They will also be responsible for legally serving the sealed divorce order documents to the other party using a process server.

How long do you have to be married before you can file an application for divorce?

In Australia, you have to be married for at least 2 years before you can apply for a divorce. See the question below on what to do if you have been married for less than 2 years.

What should you do if you’ve been married for under two years?

If you’ve been married two years or less, you must undergo compulsory mediation, provided by a Family Court-approved child and family mediator. The purpose is to discuss a possible reconciliation. Then, with a certificate issued by the counsellor, you can file an application.

However, if you or your spouse cannot attend counselling, you must outline the reasons in an affidavit, submitted with the application. If you’re close to the two-year threshold with no mitigating circumstances, we recommend waiting for the deadline to expire.

How long do you have to be separated for?

In Australia, you have to be able to show that you have been separated from your spouse for 12 months and 1 day. Ideally you would be living in different locations and have not spent social time with each other to be considered separated in that time. The Court will look at the evidence to decide.

What if we’re separated but living under the same roof?

You can cohabitate, but you must prove the marital relationship is completely broken down. This will generally involve providing Affidavits to the Court setting out the evidence proving that you and your spouse have been separated but living under the same roof.

This can get a bit more complicated as the Court will have to look at quite a few factors for you to be considered separated for 12 months. The things they will look at include:

Financial Arrangements like who is providing financial support, tax reporting, sharing a bank account or not etc.
Household living arrangements (sharing a bedroom, who does the chores, do you socialise with each other)
Intimate Relations
Other social aspects, like do you still present as a couple in public, have you told your family etc.
Evidence from a third party that the marriage is over

Note: This is not an exhaustive list.

In this situation it’s important to seek legal advice so you can safely identify if you can be considered separated for the adequate period of time.

How to get a divorce if you don’t have a marriage certificate?

It is Australian law to submit your application with your marriage certificate, however there are some individual circumstances where that might not be possible. For example, if you were married overseas or lost your marriage certificate. In this situation you’ll need to submit a “Affidavit in Lieu of Marriage Certificate”. Which is a formal statement which demonstrates to the Court that your marriage is valid. You will need to show in the Affidavit that you have done your best to find a replacement and that your marriage is valid under Australian law. Read more here .

If you were married overseas and your Marriage Certificate is not in English, you will need to have your Marriage Certificate translated by a certified translator service.

How long does divorce take?

Generally speaking, it takes approximately four months from the filing of a Divorce Order for it to be finalised. A divorce is generally finalised one month and one day after it is granted Once your divorce is finalised you can print a digital divorce order from the Commonwealth Courts Portal on the next working day.If planning to remarry, or you can’t locate your former spouse, allow more time for it to go through.

What are valid grounds / reasons for divorce in Australia?

The only reasonable grounds for divorce in Australia are irreconcilable differences, made clear by at least 12 months’ separation.

For a successful application, you must:

Prove the marriage is irretrievably broken (i.e. through a minimum 12 months’ separation)
Have been married for at least two years, or undertaken necessary counselling in the Family Court

However, if you and your partner have reconciled for three months or more, the 12-month separation period starts again.

Can either party oppose the divorce?

In some rare cases, a party can oppose a divorce. The key reasons are: disputing whether the date of separation meets the 12-month requirement or divorce proceedings may be underway overseas or that the Court does not have jurisdiction.

Failure to agree on property settlement or parenting arrangements isn’t grounds for divorce. If your partner opposes the divorce, they must file a response application. This must be served to you or your lawyer before the hearing.

What should I do if I can’t locate my spouse to serve the application?

In this case, you can still apply to the Court. However, you must prove you have endeavoured to locate your spouse. Should their address not be found, you can file an Application for Substituted Service. This application can then be served by alternative means, such as on a family member or by , by is served to a family member of your spouse on their behalf. If successful, the Court allows documents to be served to said family member via electronic means (i.e. email or Facebook).

Keep in mind, the extra legal work involved increases your costs and delays the final Divorce Order.

What impact will the divorce have on my children?

Children’s arrangements are finalised prior to the actual divorce. If your children are under 18, the Court must ensure sufficient provisions have been made for their welfare. This doesn’t mean parents can’t argue over parenting arrangements. It simply means the children’s physical and emotional wellbeing is maintained.

Parties often attend mediation to determine post-separation parenting arrangements. This is a mandatory step before initiating parenting proceedings in the Family Court. Parents can enter a Parenting Plan to document their agreement, or select a legally binding option like an Application for Consent Orders.

Whilst parenting matters are separate from divorce, the Court required parenting arrangement information (including their education, health and care) as part of the Divorce Application. Even if some aspects are being contested, the Judicial Officer must be satisfied at the Divorce Hearing that appropriate arrangements are in place before the divorce order.

If I was married overseas, can I get a divorce in Australia?

Provided they have the jurisdiction to hear the Application, the Family Court can dissolve overseas marriages. The Court may do so if you are:

An Australian citizen (by birth, descent or grant), a permanent resident, or;
Consider Australia as your home and intend to stay indefinitely

Upon meeting these conditions, you can apply for a divorce in Australia, if you have a copy of your overseas marriage certificate. If the copy of your marriage certificate is in a foreign language, it must be translated and this translation filed with the Divorce Application.

Should I apply for divorce jointly?

Yes, as these are quicker and more cost-effective. A joint application incurs no service fees, and if you have children under 18, they are dealt with in chambers. This means lawyers don’t need to attend the divorce hearing and legal fees are reduced.

How does divorce impact my property rights?

As already mentioned, a divorce does not determine your property entitlements. The reason being, property settlement is much more complex than a divorce application. The only connection between them is your property settlement has to be filed within 12 months of your divorce finalisation. It is therefore advisable to commence property settlement negotiations prior to applying for divorce. Parenting arrangements can be finalised at any stage after separation.

What impact does divorce have on my will?

Upon divorce, any gift left to your spouse becomes invalid. Therefore, both parties should make separate wills to reflect your wishes. We also recommend removing your spouse as beneficiary to your superannuation and life insurance benefits. If you haven’t updated your will since separation, we recommend obtaining Will and Estate Planning advice.

Perhaps also note that a Power of Attorney is automatically revoked upon Divorce.

Summary

In summary, divorce is simply the final step in dissolving your marriage and doesn’t involve the division of assets, that comes after the official Divorce Order. To ensure your application is successfully filed and accepted by the Family Court, get in touch with KMB Legal today , we can provide a friendly face to help through the whole process.

Rent Relief for Commercial Leases in Queensland during COVID-19: What you need to know

Tue, 06 Oct 2020 00:31:04 GMT

Rent Relief for Commercial Leases in Queensland during COVID-19: What you need to know

For many businesses, the current COVID-19 situation has led to a reduction in revenue – directly impacting their ability to cover vital bills for their business. In Queensland, rent relief has been included as part of ongoing COVID-19 regulations, providing a way for companies to stay afloat in a challenging time.

We provide all the information you need to understand current emergency regulations in Queensland regarding retail leases and commercial leases during the COVID-19 crisis. Read on to find out more about what these regulations mean, what rent relief consists of, and what landlords can and cannot currently do:

What is rent relief?

As the name suggests, land tax relief or rent waivers is a process in which retail and commercial lease tenants can ask to reduce or waive rent from a landlord. This may include deferred payments, an overall reduction of rent for a period, or waiving a certain amount of rent based on the decrease in turnover a business has experienced due to COVID-19. Under Queensland’s emergency COVID-19 regulations, rent relief is designed to protect companies that would otherwise fail due to the pandemic.

What are the regulations for commercial leases during covid 19?

Current emergency regulations for commercial lease won’t apply to every business or premises. To be included within these regulations, businesses will have to meet one of the following requirements:

• The retail and commercial tenants are classified as SME, making a turnover below $50 million

• The commercial tenant is eligible for the current JobKeeper scheme

• The commercial tenant falls under additional exceptions, such as the Land leased Act or farming-based businesses

For any of the above businesses affected by the current global situation, it may be possible to request rent relief from commercial leasing. In this case, a decline in turnover does not include any assistance that businesses have received thanks to NSW government help or grants during COVID-19.

In the case of franchised businesses, where the lease is between a franchisor and a franchisee where the franchisee meets the above requirements, this will be an affected lease. In turn, the lease between the franchisor and landowner will also be an affected lease within this chain.

Finally, for related tenants – where tenants are affiliated or where several different locations trade under a single name – the turnover of the business will be aggregate. This means all tenancies are considered together to determine eligibility.

How long will the regulations last?

The period for commercial tenants considering rent payable relief was originally from 29th March 2020 through to 30th September 2020. This has now been extended to 31st December 2020. This period is referred to as the ‘response period’, and provides ample time for lease disputes to undergo the regulatory resolution process.

What can landlords do if commercial tenants in retail and commercial leases are looking for rent relief?

Retail and commercial leases under current regulations may be concerned that they have no rights regarding their tenants. However, while others offer rent relief, and is considered designed to provide commercial tenants with ways to stay in business and retain their lease, there are certain things that landlords can still do. If a company has not paid their rent for a reason other than COVID-19, they are not covered under emergency regulations – which means the usual process for defaulting on rent must be followed.

In the case that the landlord and tenant arrange for rent relief, and this is not followed, the tenant is not then further protected. Similarly, if a tenant refuses to enter negotiation for rent relief, they are also not covered under Queensland’s emergency COVID-19 regulations.

What are landlords unable to do during this process?

During the response period of the rent relief process, landlords cannot take any ‘prescribed action’ against their commercial tenants that are on an affected lease. This includes businesses that fail to pay rent or outgoings or those that fail to trade. Prescribed action includes enforcing rights, using security deposits, or terminating leases. This only applies during the response period – once an agreement has been reached between the tenant and landlord for rent relief, this no longer applies.

During the response period, landlords can also not increase rent. While rental reviews are allowed, the rental price of the commercial property cannot accrue until after the response period has been completed. It’s worth noting that this only applies to reviews unrelated to business decline in turnover.

How does the rent relief process work?

Both tenants and landlords may instigate the rent relief process. Once negotiations have started, each party must exchange accurate information – allowing for clear and transparent decisions. This information may include the definition of what this specific rent relief will entail, evidence of the tenant’s position as an SME or within the JobKeeper scheme, and information on reduction in annual turnover because of COVID-19.

Once the information has been provided, and negotiations are underway, the landlord then has 30 days in which to make the commercial tenant an offer for a rent reduction. For any rent relief the landlord offers, 50% or more must be waived under current emergency regulations.

Deferred payments may be included as a part of this agreement, where the tenant agrees to pay rent at a later date with no interest or fees. This can be paid off regularly over a 2-3-year period following the response period. The landlord can retain security deposits until all deferred payments have been made.

Landlords must also offer tenants rent concessions such as extensions of term equal to the time in which the tenant requires rent relief. However, if the landlord has already agreed on a new tenant lease or there are other impediments, this may not apply.

You must record the full rent relief agreement in writing. This ensures that everyone understands the facts and has a clear understanding of the leasing principles that have been made for rent relief. If possible, recording the whole agreement process can ensure there are no other issues or confusion in terms of the agreement further down the line.

How is rent relief calculated?

When retail and commercial landlords offer a land tax relief or rent relief agreement to their commercial tenants, this is calculated based on several factors. These include:

• Current rent reduction provided in annual turnover for the tenant

• land tax reduction

• How much the tenant is compromised

• The financial position of the landlord<

• Any savings through land tax attributable, land tax payable rates, and other Australian government support, or NSW government introduced fees

There may be other factors considered in land tax relief or rent relief reductions. However, the decline in turnover of the business itself is always a significant factor in what percentage of rent waiver is offered overall – to ensure fairness to renegotiate rent and reach the best possible outcome.

What happens to pre-existing rent relief agreements?

For tenants and landlords of retail or commercial lease properties that have already made agreements for rent relief, current regulations state they are enforceable. However, any further negotiations must be consistent with existing regulations if they are required.

If you’re unable to agree as a tenant or a landlord during the prescribed period, current regulations require proper dispute mediation carried out by a small business commissioner-appointed mediator. Should this also fail, both parties will then go on to be heard at QCAT for their lease dispute

The Duty of Disclosure in Family Law

Wed, 23 Sep 2020 02:22:06 GMT

The Duty of Disclosure in Family Law

The family law matters, or any other parenting matters, upon separation, has two leading concerns for couples. The first family law dispute is the suspected hiding of assets available for distribution. The second family law matter is being secretive about their earnings in a timely manner.

This behaviour results in a serious breakdown of trust even for family lawyers, or independent children's lawyer. For a stress-free separation, the other party is bound by full and frank disclosure to provide their partner and the court process with all financial circumstances or information. Your duty is continual, from the pre-action phase (before the case goes to court date), until the case concludes.

This blog outlines what you must provide and the consequences of not doing so.

What is the duty of disclosure family law?

During a matrimonial property settlement, you must give full and frank disclosure of your indirect financial circumstances. These include income, property owned, interest, and other financial resources. This applies whether the property is in your name, on your behalf, in family law proceedings trust, or in a company. You also must declare property disposal information (i.e. gift, transfer, or sale) made the year prior to separation or since separation, which may affect the claim.

This information must be disclosed on a paper document or stored some other way, such as a computer storage device.

Full and frank disclosure on family law rules

Family Court is colloquially known as “the liar’s court” . Many cases consist of allegations that one party has deliberately hidden (or failed to disclose) assets from the other party. This is commonplace in “big money” cases, where there’s much to be won or lost in the duty of full and frank disclosure or non-disclosure of assets.

Do you suspect your partner of not providing a complete declaration? If so, there are many steps you can take to ensure they are honest.

#1 Financial statement disclosure

The financial disclosure document must be filed and served once a party launches or answers an application for the case of medical reports, school reports, and financial disclosure in Family Court. This standard form is vital to the family law case, family law system, family law rules, property cases, and further particulars. The reason is, this powerful duty to disclose documents ensures a complete and honest declaration is made.

When served, examine the form(s) carefully, ask questions, and request more documentation from the party swearing said document (aka the deponent). If their circumstances change, the Family Court mandates the deponent to issue an amended Financial Statement.

#2 Document inspection

Has your spouse made a discovery of duty to disclose, or disclosure documents, or is said document(s) referenced in either an affidavit, some financial cases, or a financial statement? If so, you can (after giving your partner notice) request that they make the required particular documents, or more documents available to inspect. As document inspection is the legal right to copy their document(s), you can also make your own copies.

#3 Discovery oath

You may be unsatisfied with the duty to disclose document(s) your partner has disclosed. If you’re unhappy with their discovery of financial circumstances change documents and financial resources or financial statements, you are allowed to request an order forcing them to file an Affidavit of Documents. Under this order, your partner must discover certain documents in their possession or control. They must also explain whether or not they have custody of the necessary documents. This is referred to as a “Discovery on Oath”.

#4 Undertaking by party

Even after the Discovery on Oath, you may not be satisfied with the result. Do you suspect that your partner is still hiding information relevant to the oath? Despite giving a written undertaking to the Family Court forms proceeding stating they have provided a “full and frank disclosure”, in accordance with Court rules? A written undertaking refers to a promise made to the first court date (it is similar to an Order which must be obeyed). "Filing false undertakings is strictly punishable by law."

As such, an intentional breach of an undertaking equates to violating a Court Order. This may result in your partner being in contempt of court. This is a serious charge which can lead to jail time.

#5 Issuing a subpoena

Your partner is required to do more than discover documents in their possession. They must also discover those within their control. This rule applies even if they no longer have copies of the required document(s). However, this procedure isn’t always efficient or practical. Therefore, there’s another procedure in which you can request the Court to issue subpoenas to individuals who are not parties directly involved. These include people who can access records pertaining to your partners, such as employers and banks.

#6 Answering specific questions

If you remain unsatisfied with the duty of disclosure from your partner, you may question them about certain topics (i.e. finances, assets, records, etc.) with a written notice entitled Answers to Specific Questions.

The questions must directly relate to the dispute, as you may only ask once and have a limit of 20 questions. Based on the answers, your partner must produce relevant documents that were not previously discovered.

They may also be cross-examined in Court. If inconsistencies are found, adverse references might be made from the answers submitted in writing, to those provided in the witness box.

Consequences of non-disclosure

If you or your partner fail to comply with Court rules to produce disclose requested documents, you can face an array of consequences, such as:

The Court can deny you permission to use the information relevant in question as evidence to bolster your case
Halt or entirely dismiss portions of or your entire case
Issue you with a Supreme Court Order, which forces you to pay all court order costs and other legal costs
Give you a fine or imprison you for being found guilty of Contempt of Court. This will apply if you refuse to disclose documents or being in breach of your undertaking to issue the full duty of disclosure to the Court, and;
Assign a specific value to your interest in any property, to determine the total asset pool of your relationship.

Examining suspected disclosure

If a lot of money is at stake, people are tempted to dispose of or hide their assets. In this case, you can hire a forensic accountant to locate these assets.

Most often, people hide assets in off-shore bank accounts, create false undertaking companies, put assets in the name of other family members, hide behind the corporate veil, or create fake debts to companies, trusts, or family members.

Summary

As this article outlines, it can be difficult even for family lawyers to ensure your partner makes full and frank disclosure. If you need legal advice dealing with disclosure obligations, disclosure applies, or financial and parenting cases of your separation, call our national legal hotline or email KMB Legal for legal advice today.

Debt after separation: what are your rights?

Mon, 14 Sep 2020 22:13:36 GMT

Debt after separation: what are your rights?

For some couples going through matrimonial property settlement time limits proceedings, a concern may be that one (or both) parties are disposing of cases involving lost assets or racking up credit card debt in an attempt to reduce the amount of money or possessions the other individual receives as part of the divorce settlement.

Once a separation has taken place, part of the divorce process involves formal property settlement, drawing up an inventory of all the asset pool of the former partner (whether jointly or individually).

Once this has been achieved, the family court treat assets that need to be divided between the two parties. Ideally, this should be an amicable process, achieved through mediation. Unfortunately, if the case ends up in court, the issue may become an acrimonious one.

After separation, a party may try to deliberately dispose of property assets, matrimonial assets, or income in an unreasonable manner, seeking to deprive the other party of the financial benefit it might bring.

Here we take a look at what types of post-separation expenditure or asset disposal may be seen as unreasonable or wasteful, along with consideration of the relevant case on family law.

What happens if post-separation expenditure or asset disposal is proved to be wasteful?

If it can be proved that the dissipation of the asset pool by one or both parties was deliberate, the financial settlement will be altered to reimburse the wronged party with an appropriate percentage value of the wasted funds.

It's worth noting that whilst one party may suspect that wasteful spending by the other party has taken place, it's quite hard to prove.

There are five main scenarios where willful dissipation of assets or income may be suspected:

Spending on legal fees
Giving away assets for free, or allowing them to be used free-of-charge
Gambling
Reasonable living expense
Selling assets and spending the proceeds

Spending on Legal Advice and Family Court Fees

Generally, legal fees are seen as a reasonable expense, as both parties will usually incur approximately the same level of fees. Where one side has disproportionately higher costs, the judge will consider factors such as:

what the legal costs relate to;
what proportion of the costs were incurred prior to the current divorce proceedings (so was the matter ongoing);
who will be the beneficiaries of a successful conclusion to the matter on which legal fees are being incurred;
and whether the litigation requiring legal expenses may be seen as vexatious.

The judge may take into account the findings from Farrell v Farrell (1996) in determining whether legal costs should be deemed an unreasonable depletion of funds.

Giving away a property settlement for free, or allowing them to be used for no charge

Useful clarification on this issue is provided by the findings from Kowaliw and Kowaliw (1981) FLC 91-092. In this divorce case, the husband allowed an individual who was potentially going to purchase the family home to live in the net property pool, free of rent, for more than a year. The individual was also not required to pay a contribution to cover any living expenses. In addition, the husband's business incurred taxi contributed significant income or losses on-property pool, not all of which appeared to be coincidental to the property settlement time limit.

From the evidence given, it appeared to the judge, that Mr Kowaliw had decided to reduce his income as much as possible following the property acquired post-separation, in a deliberate attempt to reduce the value of property pool assets to be considered as part of the divorce, and property settlement.

Gambling post-separation assets

Although, at first sight, gambling may appear to be a clearly unreasonable waste of assets and income, a judge will take the individual circumstances of the case into account before determining whether assets that have been gambled away have been disposed of with the intention of depriving the other party of funds.

Much of the case in family law used when deliberating on gambling derives from Crampton v Crampton. In this case, the wife admitted gambling away around $100,000. It was later found that this figure was as high as $140,000. The wife's legal team were able to produce evidence that she had suffered from a gambling problem during the course of her married life and had sought treatment for it. Evidence was also produced from medical specialists, who indicated that her gambling addiction was long-term and difficult to treat. Taking these circumstances into account, the judge ruled that her gambling spend wasn't incurred with the aim of depriving her husband of divorce proceeds.

In contrast, in the case of AB & GB (No. 2) [2005] FMCAfam 402, the judge found that the husband had squandered around $80,000 of a $400,000 compensation package on gambling. It was decided that, rather than being the result of an addiction, the gambling had occurred because the husband was deliberately seeking to squander the money so that his wife couldn't get access to it through the divorce settlement.

Reasonably incurred living expenses

As the name suggests, reasonably incurred living expenses will not be judged as being a deliberate dissipation of assets or income. Although there have been various legal cases brought in the past that have contested whether a particular expense is "reasonable", there is a need for considerable evidence before a living expense can be judged "unreasonable".

Selling property pool assets and spending the proceeds

Townsend (1994) 18 Fam LR 505: FC is the case law that is often cited. In this case, the husband sold a taxi, worth $148,000, then spent the proceeds. It was argued that selling the taxi (which was used as a business vehicle to provide income) was premature, and done with the intention of reducing the amount of income available for distribution between the two parties, as well as with a view to reducing the amount of capital available. In this case, $148,000 was transferred from the husband's settlement figure to the wife's.

Conclusion

Deciding whether gambling debts or joint debts incurred after separation should be viewed as reckless and preventable, or reasonable, is a complex matter. Timely legal advice is essential in order to make sure that you end up with what you're entitled to under the Family law. KMB Legal is an established legal firm that can assist with all legal matters pertaining to divorce, including separation, financial matters, child custody and access. Seek legal advice early - Contact us for more information.

Things You May Not Know About Your Offer to Lease

Thu, 27 Aug 2020 01:42:57 GMT

Things You May Not Know About Your Offer to Lease

Tenants beware! Signing an Offer to Lease on a property can result in a binding agreement, even if the parties do not then agree on the terms of the official lease. This blog post will explain why Offers to Lease may result in a binding agreement, and when they don’t result in a binding agreement.

Generally, when a prospective tenant wishes to apply to enter into a lease with a landlord, the landlord or its agent provides a document called an Offer to Lease for the tenant to complete.

This document sets out the particulars and terms of the lease, including any special conditions that are to be included in the lease. Such particulars include, for example, details of the parties, the permitted use of the premises, the term of the lease and any option terms, rental and outgoings, security deposit, rent reviews, and special conditions.

While the Offer to Lease is initially prepared by or on behalf of the landlord, the document represents the offer made by the tenant which is then to be considered by the landlord. A tenant is often required to also pay a deposit when making the Offer to Lease.

Once the Offer to Lease is accepted by the Landlord, the formal lease documents are prepared for execution.

Is an offer to lease legally binding?

Many people do not realize that an Offer to Lease can be construed as a legally binding document. One would need to consider the circumstances surrounding the making of the Offer to Lease to determine whether the Offer constitutes a legally binding contract.

The law identifies four types of situations where negotiating parties reach some form of a preliminary agreement with a view to then finalizing a formal contract, which also applies to an offer to lease pending the formal lease documents:

All terms of the lease are agreed as set out in the Offer to Lease and the parties intend to be bound to by the Offer to Lease and perform to terms of the document but wish to reaffirm the terms in a formal Lease. If this occurs then the Offer to Lease is binding.
All terms in the Offer of Lease have been agreed upon, and the performance of all or part of the agreement is subject to signing the formal lease. If this occurs then the Offer to Lease is also binding.
If the parties do not intend to make a final agreement pursuant to the Offer to Lease, until a formal lease is signed then the Offer to Lease is not binding.
If the parties have agreed on key terms in the Offer to Lease that are to be performed immediately pending negotiation of the remaining terms in a formal lease, then the agreement is binding and replaced by the detailed terms of the formal lease. If the detailed terms of the formal lease cannot be agreed upon, then a court may determine the remaining terms.

It is therefore dependent on the circumstances of each matter as to whether an Offer to Lease is binding. However, generally where the usual elements of a contract are satisfied, Offers to Lease are usually considered to be legally binding.

Accordingly, it is paramount that the parties ensure that all of the provisions within the document are in accordance with the terms of the formal lease document, as the formal lease will be prepared based on the provisions of the Offer to Lease.

The parties should particularly consider the following issues before signing an Offer to Lease:

The proposed use of the premises and whether the premises complies with Council planning laws;
Whether the lease will be a commercial lease or a retail shop lease . This is also particularly relevant when assessing which outgoings the landlord is able to pass on to the tenant under the Retail Shop Leases Act .
The base rent payable;
Rent review process;
The outgoings payable, including what the outgoings are and how such outgoings are calculated;
Whether landlord’s fixtures/fittings are offered with the premises;
Term of the lease and any options;
Security deposit;
The deposit payable upon signing the lease and whether the deposit is deducted from the first month’s rent;
What other costs are associated with the lease, for example, whether the tenant is required to pay the landlord’s legal fees relating to the preparation of the lease and any registration fees (again, this is also dependant upon whether the lease is a retail shop lease);
Any works to be provided by the tenant or landlord prior to the commencement date of the lease;
Any rent-free period or incentives;
Whether there is a demolition or relocation clause in the lease.

The list is not exhaustive and the parties should obtain various advice from experts to determine what matters should be discussed, depending on the use of the premises and the state of the premises itself.

Conclusion

To summarise, signing an Offer to Lease may result in a legally binding agreement. It’s important to understand the different circumstances that may affect whether an Offer to Lease becomes binding or not. If you need any help with leasing a property, please contact our team today.

All You Need To Know About Retail Shop Leases

Thu, 27 Aug 2020 01:39:15 GMT

A retail shop lease is distinguished from a commercial lease. Such leases are governed by the Retail Shop Leases Act (Qld) 1994 (“The Act”). The purpose of the Act is to help balance the rights and obligations between the landlord and tenant.

Under the authority of an Act. The landlord may limit the amount of compensation payable to the tenant in limited circumstances.

What is a Retail Shop Lease?

In Queensland, a lease qualifies as a retail shop lease if:

The tenant business is located in a Retail Shopping Centre; or
The tenant business is used wholly or predominantly for the carrying on as a Retail Business.

Retail Shopping Centre Definition

A Retail Shopping Centre is defined under s5D of the Act as a cluster of premises that have all of the following attributes:

5 or more of the businesses are used wholly or predominantly for carrying on retail businesses; AND
All of the premises:
Owned by 1 person; or
Have 1 lessor or head lessor, or if the premises were leased, would have 1 lessor head lessor; OR
Comprise lots within a single community titles scheme under the Body Corporate and Community Management Act 1997; AND
All the premises are located in:
1 building; or
1 or more buildings if:
The buildings are adjoining; or
If the buildings are owned by 1 person, the buildings are separated by common areas or other areas owned by the owner or road; or
If the premises are not owned by 1 person, the buildings are separated by common areas or a road.
The cluster of premises is promoted or generally regarded, as constituting a shopping centre shopping mall, shopping court, or shopping arcade.

Retail Business Definition

A business that is considered as wholly or predominantly carrying on a retail business is defined under section 5c of the Act, which refers to Schedule 1 of the Retail Shop Leases Regulation 2016 ( Qld ) .

Schedule 1 lists out various types of business that fall within the definition of a retail business. The list is quite extensive and tenants should refer to the Schedule to determine whether their business falls within any of the categories.

Specific exclusions apply pursuant to s5A of the Retail Shop Leases Act

Some exclusions apply pursuant to s5A of the Act whereby some retails businesses are not considered as retail shop leases. These include lease premises which:

have a floor area of more than 1000m2;
are located on a level of a multi-story building, or a standalone build where 25% or less of the total area is retail. For instance, non-retail premises located on a floor of a shopping centre is not a retail shop if 75% of the total lettable area of the floor is used for commercial or professional offices;
are for a vending machine;
are for an advertisement display;
are for a piece of information, entertainment, community, or leisure facility;
are for telecommunication equipment;
are for an automatic teller machine;
are for storage; or
are for parking.

Benefits and Protections for Tenants

The Act provides various benefits and protections to the tenant at a higher level than other commercial leases. Accordingly, it is important that a tenant becomes familiar with the relevant provisions of the legislation.

These benefits and protections include the following:

The landlord is restricted on the proportion of outgoings it can require the tenant to pay;
The landlord cannot charge land tax on to the tenant;
The landlord cannot pass its costs of preparing the lease on to the tenant;
The landlord is restricted on the way rent review mechanisms are carried out.

Disclosure Statement by the Lessor

Further protection provided to the tenant is that the landlord is required to provide a disclosure statement to the prospective tenant prior to the tenant signing the lease.

The Lessor Disclosure Statement must contain information in relation to the prospective lease such as key lease terms, details of the premises, details of outgoings, and other relevant costs associated with the lease.

This statement must be provided at least seven (7) days prior to the tenant entering into the retail shop lease.

If the lessor disclosure statement is incomplete, contains false or misleading information, or is not provided within the above timeframe.

The tenant may give written notice to terminate the lease within six (6) months after the date of the lease.

It is important to note that the tenant may be able to seek compensation for any damages suffered if the tenant enters into a lease based on incomplete, false, or misleading information contained in a lessor disclosure statement.

Other disclosure and reports to be provided under the Act

Under the Act, the tenant is also required to provide the following documents prior to signing the prospective lease to the landlord:

a lessee disclosure statement containing information about the tenant’s business circumstances; and
a legal advice report as well as a financial advice report (the tenant has less than 5 retail leases).

Conclusion

Overall, parties should not enter into retail shop leases without knowledge of the legislative requirements and consequences for failing to comply with

the relevant provisions.

Such provisions cannot be contracted out of and accordingly must be strictly followed. If you need extra support with your retail shop lease, please contact us.

How The Courts Determine a Matrimonial Property Settlement

Mon, 17 Aug 2020 03:41:00 GMT

How The Courts Determine a Matrimonial Property Settlement

Following the breakdown of a relationship , the next step is usually to consider the division of property and assets of the relationship.

The courts require that the parties first try and attempt to reach financial agreements and property settlement by agreement themselves. If the parties cannot reach an agreement , then an application for a property settlement is to be filed in the courts for the court to decide on how the property of the relationship is to be divided. It is important to seek legal advice in relation to making an application, as strict time limits apply in making the application to the courts.

Family law act: The Four-Step Process in the family court

Once a de facto application is made to the family law act, the family court must consider all relevant circumstances of the de facto relationship to determine a fair property settlement. The court follows what is known as a “4-Step” process when determining an application, which is set out below.

It is also important for parties to a property settlement to consider this process when negotiating a property settlement, as even a property settlement by agreement must still be considered fair in accordance with the law.

Step 1 – Identifying and valuing the assets, liabilities and financial resources of the parties

This first step involves identifying and valuing the assets , liabilities and non-financial contributions of the parties . This includes all assets, liabilities and financial resources that either party holds an interest in, regardless of whether they are held solely, jointly or by another entity. It includes assets, liabilities and financial resources held overseas. The property includes assets of either or both parties. This includes almost anything of value such as real estate, shares, motor vehicles, jewelry, funds in bank accounts, superannuation, furniture and personal effects.

If agreement as to the values of the asset cannot be reached between the parties, experts usually need to be retained, such as values or forensic accountants, to value those assets to determine the values.

All assets, liabilities and financial resources of the parties are then referred to as the “property pool”.

Once the value of the property pool is determined, the parties may then proceed to Step 2.

Step 2 – Assessment of the contributions made by the parties

The second step involves the assessment of the contributions made by the parties during a de facto relationship. These include:

Financial contributions to the property pool;
Non-financial contributions to the property pool;
Contributions to the welfare of the family, including contributions in the capacity of the homemaker or parent.

The Court will often form the view that the parties have contributed equally to the property pool in long-term relationships. However, the court may find that some circumstances cause contributions to be other than equal, such as:

Where there are no children and the relationship is a short-term relationship. In these circumstances, the court will generally be more concerned about the direct financial contributions made by each of the parties;
Where one of the parties has made a substantial contribution by way of a family gift, compensation claim or inheritance;
Where one of the parties had assets at the beginning of the relationship that was considerably more than the other party; or
Where the court considers that there was deliberate or reckless conduct of one of the parties that caused a loss to the property pool.

Step 3 – Assessing the future needs of each of the parties

The third step in the family law application involves assessing the future needs of each of the parties. The Court must consider such things as:

Age of the parties;
The health of the parties;
Personal loans;
Personal debts;
parties property interests;
net asset pool;
indirect financial contributions;
All the property. (Property owned, property acquired, property orders, and other property matters);
parties respective contributions;
Future earning capacity of the parties, future financial capacity, or future financial needs;
The property division and financial agreement of each of the parties;
Who has the care of any child of the relationship;
The financial circumstances of any new relationship;
The commitments the parties have to support themselves or another person that they are required to maintain;
The eligibility of either party for a pension.

The court will consider some or all of the fifteen largely prospective factors when deciding whether there should be any adjustment in the division of the property pool in favour of a party to compensate for any difference in their future circumstances.

Step 4 – Is the proposed division of property fair to both parties?

After considering steps 1 to 3 above, the Court must then determine whether the proposed division of the property pool is just and equitable to each of the parties. There is no automatic percentage or outcome when it comes to determining a fair outcome. Each assessment is done by examining the circumstances of each individual case.

It is important for the parties to also seek advice from the outset as to what a just and equitable outcome may look like in their particular circumstance so that the parties enter the proceedings with realistic attitudes and are able to make fully informed decisions which can often lead to the matter resolving before, during a court proceeding, or before the final hearing. This often occurs and can often save costs, time and stress for the parties involved.

Conclusion

It’s important to consider the Four Step process that Courts use to determine a matrimonial proposed property settlement even if you are planning to obtain a settlement agreement before commencing court proceedings. This is because the Court still has the final say on the settlement, and they will use the principles of the Four Step process to determine that the final settlement is fair to both parties. Understanding the Four Step process before commencing property settlements can help align expectations to reasonable outcomes. Always consult a qualified lawyer when working through a property settlement to ensure your best interests are looked after. If you need any assistance at all, our team can help. Contact us today for independent legal advice, professional advice

How To Negotiate A Property Settlement

Mon, 17 Aug 2020 02:36:26 GMT

How To Negotiate Property Settlement

Upon a breakdown of a relationship , the parties need to consider what should happen in relation to the division of any property owned by a former partner, both separately or jointly.

This is referred to as a matrimonial property settlement under the Family Law Act. A matrimonial property settlement under the Family Law Partner Act extends to spouses who are or have been, married and also a former partner, or former spouse who has been in a de facto relationship. De facto relationships also include a relationship between two people of the same sex. This blog will explain the property settlement process as well as guidance on how to negotiate a property settlement.

Attempt an agreement first

The Courts require parties to make a genuine effort to reach a matrimonial property settlement by way of agreement before commencing any court process.

The advantages of reaching an agreement rather than issuing court proceedings are:

Reduced legal cost-benefit analysis from an experienced family lawyer or respective lawyers;
Reduced stress of the litigation process;
Allows the parties to be part of a fair deal decision-making process regarding property division, asset pool, divorce settlement, undisclosed asset, and other full financial disclosure, rather than the Courts imposing the decision on them;
Certainty of the outcome of the property settlement, and other property matters;
Reaching finalisation of succession planning matter in a more scheme approved timely manner, as court proceedings may take several months, if not years to conclude;
Reduces animosity between the parties, particularly where children are involved.

The property settlement process itself can often be difficult, regardless of the circumstances of the relationship or separation. Without adequate preparation, the process can be particularly lengthy, costly and stressful. The greatest error other party can make is to enter the negotiation process without the proper support, seek advice, or legal guidance and understanding of their legal rights.

Seek the right legal advice from a family lawyer

The most secure way to get property negotiations carried out in the most efficient and amicable manner is to obtain professional advice. It is important that parties do not overlook the importance of seeking professional legal and financial advice on any legal matter, particularly where property and assets are involved. There are strict time limits that apply in property settlements as well as various obligations that parties are required to comply with. One party could face detrimental outcomes if they fail in compliance with these obligations and/or time limits.

Disclose everything relevant to the matter

After you have sought legal advice, the next step of the property settlement process is for the parties to be able to identify the assets of the matrimonial property pool. This is achieved by way of financial disclosure.

It is vital that the parties are as transparent in their financial circumstance as possible, as attempting to conceal assets or financial positions will most likely lead to extended litigation in obtaining the disclosure through family court orders.

Rule 13.01 of the Family Law Rules imposes a duty on both parties to disclose all relevant information and states that ‘each party to a case has the duty to provide full and frank disclosure of all information relevant to the proceedings in a timely manner.

The duty to provide all full and frank disclosure means that each party must provide to the other all information relevant to property settlement. This includes things such as income, assets held solely or jointly, bank statements, tax returns and other financial resources as interests in a family trust or a deceased estate yet to be distributed. The list is not exhaustive and depends on the circumstances of each case.

Identify the asset pool

Asset pool and liabilities of the relationship, whether held solely or jointly, fall into what is referred to as the property pool.

Once financial disclosure has been completed, the parties can then determine all assets and liabilities that should be included and determine the total net value of the property pool. In order to accurately evaluate certain assets, the parties may need to also engage valuers, accountants or other financial professionals to assist in providing valuations of those assets.

Dividing the property pool

Once agreement is reached on the assets and liabilities to be included in the property pool and the net value of that pool, negotiations can commence on how the property pool is to be divided.

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What is a Binding Financial Agreement and Should You Sign One?

Thu, 13 Aug 2020 03:59:09 GMT

What is a Binding Financial Agreement and Should You Sign One?

We all know that Family Court proceedings can be a lengthy, costly and emotional process. The Family Law Act gives the Family Courts jurisdiction to determine how property and financial matters may be dealt with upon the breakdown of a marriage or de facto relationship.

Many people wish to avoid the challenging and difficult litigation process by entering into a Binding Financial Agreement. Once parties enter into a legally Binding Financial Agreement (“BFA”), they forego their rights to apply to the Family Law Courts for the determination of their financial and property matters.

This blog post will explain what legally Binding Agreements are and the advantages and disadvantages of BFAs to help give you insight as to whether a Binding Financial Agreement is the right solution for you.

What is a Binding Financial Agreement?

Overall, a Binding Financial Agreement, or BFA, is a private contract between two people setting out how any or all property and financial matters should be dealt with in the event of a breakdown of a marriage or de facto relationship.

A Binding Financial Agreement can be entered into:

before getting married or entering into a de facto relationship;
while married or during a de facto relationship;
during separation but before applying for a divorce; or
after a divorce or breakdown of a de facto relationship.

A Binding Financial Agreements are deemed to be binding if:

The Agreement is signed by both parties;
Before signing the Agreement, each party received independent legal advice about the effect of the Agreement on their rights, as well as the advantages and disadvantages of making the Agreement;
After signing the Agreement, each party is provided with a signed statement by their solicitor confirming that they obtain independent legal advice;
Copies of the signed statements by the two solicitors are exchanged between the parties; and
The Agreement is not terminated or set aside by the Court.

There are circumstances where a Binding Financial Agreement can be set aside by the Court, such as:

There were circumstances of fraud or duress;
There were significant changes to either or both parties’ circumstances which makes it impractical to carry out the Agreement;
A party failed to disclose assets or information relevant to the Agreement;
Since the making of the Agreement, there was a change in circumstances relating to a child which would result in hardship for the child (or their carer) if the Agreement is not set aside);
The Agreement was made for purposes of defeating or defrauding a creditor.

Why enter into a Binding Financial Agreement?

You may wish to enter into a binding financial agreement as you enter a serious relationship in circumstances where:

You have more money, property, or assets than your partner;
You may, at a later stage, expect to be entitled to a large gift or inheritance that you wish to retain;
You operate a family business or investment that you need to preserve;
You have children from a previous relationship who need to be protected financially.

Advantage and Disadvantages

There are many advantages of entering into a Binding Financial Agreement, including:

You have certainty in the outcome of your property settlement and financial matters in the event of a relationship breakdown;
You have the flexibility to determine your own property settlement;
You can secure assets, such as assets you held at the commencement of the relationship, and assets acquired during the relationship;
You can avoid the cost, time, emotion, and risk of litigation where the outcome of your property and financial matters lies in the hands of the Family Law Court;
The Agreement can assist in Estate Planning and tax relief.

There are also disadvantages in entering into a Binding Financial Agreement, which includes.

What may seem like a fair division of the assets at the time of drafting the Binding Financial Agreements, possible contingencies may arise that were not considered which could render an unfair outcome for one of the parties;
Engaging two separate lawyers or legal practitioners can be an expensive process;
The family law surrounding a BFA is complex and therefore if one party sought to set a BFA side, there is uncertainty about how the Court would deal with the Agreement.

Summary

The breakdown of a relationship is a very difficult time for all those involved. The emotional and financial stress of a court battle can no doubt cause even more distress in already challenging circumstances.

Couples often consider making Binding Financial Agreements in advance to avoid a hard situation becoming even harder.

A Binding Financial Agreements can be a cost-effective way to protect the assets you have worked so hard for and also to protect your financial future, as well as the future of your children.

It is also important to remember that Binding Financial Agreements are complex contracts that require specialised family law act advice.

Binding Financial Agreements must be specifically tailored to your individual circumstances, based on insight and strategic advice by the solicitor drafting and/or advising on the Agreement.

Failing to have adequate advice and/or drafting of the Agreement can often lead to Binding Financial Agreements being set aside by the Court.

Independent Legal Advice

At KMB Legal, we have experience in advising and drafting all aspects of Binding Financial Agreements. We believe your own unique circumstance provides the foundation of the Binding Financial Agreements.

We take no “cookie-cutter” approach when drafting the document and/or providing advice to ensure you get an outcome that is just right for you.

Our team of Family Lawyers are here to guide you toward the best solution for your circumstances.

KMB Legal | Blog for every day legal issues

Death Duties Qld: Do You Know Enough To Help Your Family?

Death Duties QLD: Do You Know Enough To Help Your Family?

Death Duties In Queensland: What Are They?

Inheritors and Wills

Capital Gains Tax

A Note on Superannuation Funds ﻿

State Tax

Land Tax

Transfer Duty

KMB Legal Is Here for You

FAQ

Do you have to pay Death duties in Queensland?

Is transfer duty payable in a deceased state?

How is a deceased estate distributed?

Are bank accounts frozen when someone dies?

What debts are forgiven at death?

Do children inherit debt?

Who pays for a funeral if there is no money?

What happens to a house when the owner dies without a will?

Are siblings responsible for siblings' debt?

Commercial in Confidence: All you need to know

Commercial in Confidence: All you need to know

Types of Business confidential information

Financial information

Product information

Personnel information

How do you safeguard confidential information?

Encrypting files and storing them in a secure location

Password protecting access to important files and systems

Draw strong contracts

Restricting access to certain areas

Ensuring that all staff are aware of their responsibility to keep the information confidential

Establishing a confidential agreement

Components of a Confidentiality Agreement

Contract clauses

Obligation of Confidence

Duty of Confidence

Breach of Confidence

Conclusion

FAQs

Who has Duty of Confidence?

When can you legally break Confidentiality?

What happens if you break confidentiality?

Can therapists break confidentiality?

Does confidentiality apply after death?

What is the difference between confidential and commercial in confidence?

Do you pay tax on inheritance tax in Australia?

Do you pay tax on inheritance tax in Australia? ﻿

What is Inheritance Tax?

How does inheritance tax work?

Inheritance Tax Threshold

Factors to consider if you want to minimise your tax obligations

1. Make use of estate planning tools such as wills, trusts and beneficiary nominations.

2. Take advantage of the generous concessions available for spouses and children.

3. Invest in assets which are exempt from tax, such as your family home or primary place of residence.

4. Manage your wealth and investments wisely to reduce the overall value of your estate.

5. Ensure your affairs are in order and up to date, so there are no surprises when it comes time to pay your inheritance tax bill.

FAQs

Do I have to pay taxes on a $10,000 Inheritance?

What is the Seven Year rule in Inheritance Tax?

How do you avoid Inheritance Tax?

Do I have to declare inheritance money as income?

What assets are exempt from inheritance tax?

What happens if you can't afford the inheritance tax

Cease and desist order Australia: Things you need to know

Cease and desist order Australia: Things you need to know

What is a cease and desist order?

What is a cease and desist order used for?

Grounds for a cease and desist order

Impersonating a brand

Actions causing financial harm

Actions causing physical harm

Cease and desist letters

What should be included in a cease and desist letter?

1. A clear and concise description of the illegal or harmful activity that is taking place

2. Demand for the recipient to immediately stop this activity

3. The consequences that will result if the activity does not cease, including legal actions

4. The contact details of the person or organisation sending the letter

What should you do if you receive a cease and desist letter?

A Note on Superannuation Funds

Do you pay tax on inheritance tax in Australia?

What makes an unfit parent?