Affinity Lawyers Blog

http://www.affinitylawyers.com.au/blog.atom.xml Affinity Lawyers Blog 2019-11-04T01:34:59+00:00 Affinity Lawyers http://www.affinitylawyers.com.au/ admin@affinitylawyers.com.au IF YOU DIE BEFORE YOUR SPOUSE - IS YOUR CHILDREN'S INHERITANCE PROTECTED? http://www.affinitylawyers.com.au/blog-view/if-you-die-before-your-spouse-is-your-childrens-281 2019-09-09T14:00:00+00:00 2019-09-09T14:00:00+00:00

Following on from last monthâs article regarding mutual/mirror wills, our Gold Coast lawyers wanted to drill down and provide some further information in this area, so that our clients have a better understanding of the process, and what can (and often does) go wrong when proper and thorough estate planning is not carried out.

Following on from last month’s article regarding mutual/mirror wills, our Gold Coast lawyers wanted to drill down and provide some further information in this area, so that our clients have a better understanding of the process, and what can (and often does) go wrong when proper and thorough estate planning is not carried out. There is an ever increasing number of blended families, and with this increase, comes a wider range of issues that need to be contemplated when undertaking estate planning. Whilst even the most detailed estate plan cannot pre-empt the vagaries of life, what it can do is alert you to a range of issues that could crop up, and allow you to be fully appraised of the various options and avenues that may be available to you in the event that they do arise.   As noted previously, it is quite common for partners to have their wills drawn up leaving their estate to each other if they were to pass away, and then to their children, thinking that this will keep their estate in the family and that their children will be looked after. However, as our recent article highlighted, if your will was drawn up in this way and you were to pass away before your spouse, leaving your entire estate to them, there is a possibility that your spouse could re-partner, and draw a new will leaving their estate (which includes the entirety of your estate) to their new partner or spouse. This means that if they were to pass away your children may not get anything without having to commence a Family Provision Application which is an expensive and lengthy process with no guaranteed outcome. This situation may be easier to understand in diagram format:  <img src="https://www.affinityconveyancing.com.au/images/editorimages/newsletter_graphic.png" alt="" width="400" height="349" />  <img src="https://www.affinityconveyancing.com.au/images/editorimages/newsletter_graphic_2.png" alt="" width="150" height="204" /> As noted above, there may be avenues available to children in these circumstances to make a claim for provision against the estate, however there are strict timing and eligibility issues which need to be satisfied, and the process can be expensive and drawn out. In a 2013 Supreme Court case, mirror wills were executed by the deceased and his first wife, leaving their entire estate firstly to each other, and if they did not survive, then equally to their children.  However, after receiving the entire estate upon his wife's death, the remaining spouse entered into a new relationship and made a new will which left his entire estate to his new spouse and nothing to the children. After he passed away, his son commenced proceedings amongst other things, seeking a declaration from the Court to enforce the original wills made by the parties which stated that after both passed away, the estate was to go equally to the two children of the marriage. However, the Court struck out his claim and determined that there was no agreement between the deceased and his first wife not to change or revoke their wills, so unfortunately, the son missed out on receiving any inheritence. Forewarned is forearmed, or so they say, and it is for this reason that our experienced wills and estate lawyers in our Runaway Bay office want to raise awareness of these types of situations, and work with our clients to arrive at a solution which takes into account all of your individual circumstances and requirements to ensure that your testamentary intentions are accurately documented. To discuss your  individual estate planning needs or if you require assistance in the administration of an Estate, please do not hesitate to contact our Gold Coast team on<a href="mailto:contact%20our%20Gold%20Coast%20team%20on%20(07)%205563%208970%C2%A0or%20email%20us%20at%C2%A0admin@affinitylawyers.com.au"> (07) 5563 8970 </a>or email us at<a href="mailto:contact%20our%20Gold%20Coast%20team%20on%20(07)%205563%208970%C2%A0or%20email%20us%20at%C2%A0admin@affinitylawyers.com.au"> admin@affinitylawyers.com.au</a>. SOCIAL MEDIA AND THE LAW http://www.affinitylawyers.com.au/blog-view/social-media-and-the-law-282 2019-09-09T14:00:00+00:00 2019-09-09T14:00:00+00:00

With the ever-increasing reach of social media and the rise of influencers, it is unsurprising that there is also a large number of disputes about the ownership of content (written work, photography, images, graphics etc) and many people are unaware of copyright and/or trademark issues, including the possibility of being on the receiving end of an action for copyright or trademark infringement.

With the ever-increasing reach of social media and the rise of influencers, it is unsurprising that there is also a large number of disputes about the ownership of content (written work, photography, images, graphics etc) and many people are unaware of copyright and/or trademark issues, including the possibility of being on the receiving end of an action for copyright or trademark infringement. Therefore, it is important that you are aware of the possible legal implications if you are publishing content on social media or online. The main legal issue which can arise in the area of social media relate to copyright. In the online space (including e-commerce and online business), there are also various issues which can arise including trade mark issues, defamation, moral rights issues and the right of publicity. Copyright There is often some confusion as to how ‘copyright’ comes into existence, with many believing that there is a registration or application system in place and that copyright must be ‘applied’ for. However, the legislation pertaining to copyright in Australia (the Copyright Act 1968 (Cth)) provides automatic copyright protection for original works (including literary works, artistic works, dramatic works, musical works and films, sound recording, broadcasts and published editions and copyright owners are automatically granted a number of exclusive rights in relation to the works, including copyright protection for the life of the creator plus 70 years. Social media content falls squarely within the bounds of the copyright legislation with content such as written blogs, articles or opinion pieces falling within the definition of ‘literary works’, while photography, drawings, graphics etc fall within the definition of artistic works. As the copyright owner, the author of the written content, photography or graphic work has the exclusive right to reproduce or communicate the work to the public, and save for some fair dealing exceptions to copyright infringement (such as criticism/review, parody/satire, research/study and reporting of news), then others are unable to use your copyrighted material without your authorisation. Conversely, if you use other people’s copyrighted material on your social media profiles without authorisation, then you are potentially in breach of their copyright and may find yourself at the wrong end of a breach of copyright action. As indicated above, social media content can include photos, images and written works, including quotes from others and links to external websites so you should be very careful when including content on your social pages which you have not created yourself. Summary The above information was very general in nature and does not constitute and should not be relied on as legal advice. Each particular matter turns on its own facts and circumstances and if you have any questions in relation to copyright, we would encourage you to contact our friendly Gold Coast legal team today on 07 5563 8970 to arrange a consultation. THINGS YOU NEED TO KNOW IF SELLING/BUYING A BUSINESS WHICH OPERATES UNDER A RETAIL SHOP LEASE http://www.affinitylawyers.com.au/blog-view/things-you-need-to-know-if-sellingbuying-a-283 2019-09-09T14:00:00+00:00 2019-09-09T14:00:00+00:00

When you are considering buying or selling a business which is currently operating under a retail shop lease, it makes sense that the transaction would necessarily include the assignment or transfer of the retail shop lease from the existing business owner to the incoming purchaser.

When you are considering buying or selling a business which is currently operating under a retail shop lease, it makes sense that the transaction would necessarily include the assignment or transfer of the retail shop lease from the existing business owner to the incoming purchaser. Our lawyers have previously written an article on the difference between retail shop leases and commercial leases (which you can read <a href="/blog-view/what-do-you-need-to-know-about-commercial-leases-269">here</a>), however this article is specifically written to provide information on the process to have a retail shop lease transferred to an incoming purchaser, and the steps that need to be taken under the relevant legislation. The Retail Shop Leases Act 1994 (Qld) (RSLA) sets out the process of assigning a retail shop lease, including the pre-assignment procedures, disclosure requirements, legal/financial advice requirements and other miscellaneous general provisions which are applicable to retail shop leases. Generally speaking, the assignment of a lease is required when the existing tenant is unable to complete the term of their lease, and seeks to transfer the time that is left on the lease to another party, for example the incoming purchaser. Essentially, the assignment results in the purchaser stepping into the original tenants shoes for the remainder of the lease rather than the creation of a new lease by way of a sub-lease. Further, most Retail Shop Leases require the prospective purchaser to obtain a Legal Advice Report and a Financial Advice Report prior to signing the lease (if you have less than 5 retail leases under your belt).  Our Gold Coast team have a multitude of experience in this area, and are able to provide you with this Legal Advice Report if needed. It is often a pre-requisite to the assignment of a retail shop lease that the landlord provides their consent to the assignment, and the lease will generally set out the way that this must occur, i.e. the notice period, whether the request must be in writing etc and a failure to do so may invalidate the request and could also be regarded as a breach of the lease. The legislation also outlines specific disclosure obligations which must be conducted in accordance with strict timeframes before an assignment of the lease can be entered into. These disclosure obligations include the current tenant providing a disclosure statement and copy of the current lease to the proposed assignee, at least 7 days before the proposed assignee signs a business sale contract or the day on which the current tenants asks the landlord to consent to the proposed assignment of the lease, whichever occurs earlier. In addition, the landlord must also provide a Lessor Disclosure Statement to the proposed assignment which mirrors the disclosure statement given by the current tenant, however it is provided from the point of view of the landlord and includes further information about the lease, the retail shop premises and the calculation of the rental payments. If the tenants or the landlord’s disclosure statements are provided out of time, then there are ways to rectify the issue, however it is best practice to abide by the timeframes as stipulated, if possible, to avoid possible complications and/or increased costs. As part of the disclosure requirements, the proposed assignee must also provide a disclosure statement to the current tenant, which should be provided before the current tenant seeks the consent of the landlord to the assignment. Upon the current tenant seeking the landlord’s consent to the assignment, a copy of the disclosure statement which was provided to the proposed assignee will also be provided to the landlord. In this way, the preliminary disclosure between all parties (landlord, current tenant and proposed tenant) should provide sufficient information and assurance to the parties in order to proceed with the assignment of the lease. There are various compensation provisions detailed under the RSLA which may apply to circumstances where disclosure statements have been defective/false/misleading, and have resulted in the entry into, or the assignment of a lease.  Requirements to pay compensation in those circumstances include the landlord and can extend to existing tenants as well as the incoming/prospective tenant. Does the landlord have to provide consent? The terms and conditions contained in the lease, and implied terms under the relevant legislation, will determine whether the landlord has the ability to decline to consent to the proposed assignment. Generally speaking, the landlord must not ‘unreasonably withhold’ consent to a proposed assignment, however the test to determine what is ‘reasonable’ is objective, and there is no definitive rule which will apply. Essentially, it will come down to the individual circumstances of the case. We can however look at some of the Court’s historical decisions to see what has previously been considered as reasonable grounds for the refusal of consent, and use these as a guideline when contemplating an assignment of a lease. Such grounds have included: -          the ability for the proposed tenant to be able to fulfil the tenants obligations under the terms of the lease (i.e. are they a ‘respectable and responsible’ person);   -          whether a proposed assignment is likely to affect the redevelopment interests in the property that the landlord has, or their capacity to lease out other parts of the property;   -          a possible depreciation or reduction in the value of the land;   -          where there is a potential negative impact on the commercial reputation of the landlord amongst future lessees.   In any event, if you are contemplating entering into a Retail Shop Lease, or you are looking at buying or selling a business to which the RSLA applies, we strongly recommend that you contact one of the experienced property lawyers at Affinity Lawyers today to obtain independent legal advice as to your rights and obligations.  Please contact us today on 07 5563 8970. WINNING LOTTO...AND THEN HAVING TO SHARE IT WITH YOUR EX-SPOUSE http://www.affinitylawyers.com.au/blog-view/winning-lottoand-then-having-to-share-it-with-278 2019-07-24T14:00:00+00:00 2019-07-24T14:00:00+00:00

A recent American case has made headlines with a Court determining that a mans $30 million lottery win was to be split, and $15 million was to be paid to his ex-wife, despite the parties having been separated for over two years prior to his win. Although they had been separated for over two years, they were in the middle of divorce proceedings when Mr Zelaskos winning numbers came up, and as a result the Court considered that the ticket was purchased with marital money, was a joint investment and thus, the windfall was marital property.

A recent American case has made headlines with a Court determining that a man’s $30 million lottery win was to be split, and $15 million was to be paid to his ex-wife, despite the parties having been separated for over two years prior to his win. Although they had been separated for over two years, they were in the middle of divorce proceedings when Mr Zelasko’s winning numbers came up, and as a result the Court considered that the ticket was purchased with ‘marital money’, was a ‘joint investment’ and thus, the windfall was ‘marital property’. With the recent hype about the larger-than-ever division 1 lottery jackpots up for grabs in Australia and with four winners from the Gold Coast sharing in over $5M in lotto wins in the past 18 months, it is no surprise that this American case has piqued our interest. So, if you were lucky enough to win lotto would you have to share your winnings with your ex-spouse?   THE POSITION IN AUSTRALIA   There have been many cases which have come before the Courts in Australia to determine how lottery wins are to be divided between parties to a relationship, however there are no hard and fast rules to go by, and each case will turn on its own facts. A similar case to Mr Zelasko’s which came before the Australian courts in 2014, albeit the parties had been separated for only 6 months prior to the wife winning $6 Million in the lottery, resulted in the Court deciding that at the time of the win, the parties had commenced the process of leading separate lives, and the win was therefore attributable directly to the wife. This was despite the husband’s argument that the ticket was purchased with funds drawn from an account which was formerly joint monies, as the Court took the view that the arrangement between the parties to each withdraw funds from the account, and then apply them wholly to purposes unconnected with the former marital relationship meant that the ticket had been purchased solely by the wife, and the lottery proceeds should be taken as a sole contribution on her behalf. An adjustment of $500,000 was made in the husbands favor on account of the husbands future needs and the disparity in financial position between the parties. In another Australian case from 2016, the husband had a lottery win of more than $600,000 during his 9 year relationship with his wife (in fact, the win came just a year into their relationship). Upon separation it appears that the wife received less than 10% of the party’s property pool which was estimated at approximately $1.4M. She subsequently appealed the decision, and one of the grounds she put forward was that the lottery win should have been treated as a joint contribution of the parties, rather than a contribution of the husband only. However, the Court denied her appeal on the grounds that the manner in which the parties had in fact conducted their affairs during their relationship, including having separate bank accounts, the banking of the lottery proceeds into a bank account in the husband’s sole name and the fact that the husband had purchased lottery tickets for 8 years prior to the relationship commencing, all led the Court to decide that the purchase of the ticket was an endeavor solely of the husband, and therefore was to be treated as a direct financial contribution on his behalf when determining the property split. This position was consistent with the findings of the Court in the earlier 2014 lottery win case, wherein the Full Court stated words to the effect that the nature of the parties relationship at the time the lottery ticket was purchased is a determining factor, not the source of the funds used to buy the ticket. Generally speaking, it appears that the Court will take into consideration the way that the parties have managed their finances and bank accounts during the relationship, the stage in the relationship when the lottery was won, and how the lottery proceeds were managed after they were paid out. However, the case of Zyk, which is often referred to in lottery win cases, arrived at a different decision than those mentioned above (albeit after an appeal) and the Court determined that the lottery prize won by the husband was in fact a joint contribution of the parties and increased the wife’s percentage adjustment accordingly, meaning she received a larger slice of the asset pool than she had been entitled to before the lottery win was included in the calculations.  It is the case of Zyk that gives a more concise breakdown of the matters which the Court should consider in lottery win cases.  In the appeal, the Court found that the person who actually purchased the ticket is not in itself a deciding factor, moreover where both parties contribute income to the relationship, or alternatively one party works while the other undertakes homemaker/parenting duties, then the purchase of the ticket should be treated as a purchase from joint funds pending investigation of other factors which may affect the outcome.   CONCLUSION As can be seen above, there is no straightforward process to determine whether you would in fact have to share your lottery win with your spouse (or ex-spouse) if you were lucky enough to win, as each case turns on its own facts. Our family lawyers are available should you need to discuss your individual circumstances, however for a more in-depth insight into the property settlement process, please read our further article <a href="/blog-view/the-property-settlement-process-in-australia-279">here</a>. If you have any questions in regards to a lottery win, inheritance or windfall, Affinity Lawyers experienced Gold Coast solicitors and family law team are here to help. Please telephone our friendly professional team today on 5563 8970 to arrange your initial consultation. THE PROPERTY SETTLEMENT PROCESS IN AUSTRALIA http://www.affinitylawyers.com.au/blog-view/the-property-settlement-process-in-australia-279 2019-07-24T14:00:00+00:00 2019-07-24T14:00:00+00:00

At Affinity Family Lawyers, we are all too aware that separation from a husband/wife or long term de facto partner can be one of the most stressful and traumatic events in a personâs life. It can also be one of the most confusing times in a personâs life, especially if the only experience someone has had of the family law system and the process is by hearing their friends or family talk about their own experiences, which are more than likely tainted with that persons own misgivings, and opinions on the system, and which may or may not even apply to you, your matter or your particular circumstances.

At Affinity Family Lawyers, we are all too aware that separation from a husband/wife or long term de facto partner can be one of the most stressful and traumatic events in a person’s life. It can also be one of the most confusing times in a person’s life, especially if the only experience someone has had of the family law system and the process is by hearing their friends or family talk about their own experiences, which are more than likely tainted with that persons own misgivings, and opinions on the system, and which may or may not even apply to you, your matter or your particular circumstances. We have written several articles previously in relation to separation and the process that occurs after separation (links are posted at the end of this article if you would like to read them).  It is important to remember that the vast majority of family law matters are able to be settled between the parties out of Court, and an agreement can reached either by negotiation via solicitors or the parties attending at a mediation and formalising the agreement by way of a binding financial agreement or consent orders. However, there are of course matters which are not easily resolved, or which have complex circumstances which necessitates the need for the Court to assist in determining the matter. If a family law matter does proceed to Court, it is important that parties are aware that there is no exact science in how the Court will determine exactly how the assets are to be split between spouses upon the breakdown of a relationship. Generally if a matter does come before a Court, then the Court will undertake a four-stage process to arrive at a percentage split between the parties, which can be briefly summarised as follows: 1. Identify and value the property pool of the parties; 2. Consider the contributions of each party towards the relationship and assets of the relationship, including toward any children of the relationship; 3. Consider the future needs of the parties in accordance with the factors prescribed in Section 75(2) of the Family Law Act 1975, which include (but are not limited to) the age and health of the parties, the income, property & financial resources of each party and their capacity in relation to employment, the care and control arrangements of any children, and the extent to which either party has had their earning capacity affected by taking on a role of primary homemaker during the relationship. The Court will also have regard to whether either party is in a relationship and what the financial circumstances are of the new relationship. 4. Consider whether the proposed order is just and equitable.   STEP 1: IDENTIFY AND VALUE THE PROPERTY When identifying ‘property’, the Court will have regard to all assets and liabilities of the relationship, regardless of whose name the property is held in. Further, assets which a party may have direct control over, such as a company or a trust may also be included. Once the property has been identified and valued (if required), the assets and liabilities are ‘pooled’ and a property pool is created to determine the net value of the total property holdings of the relationship (being all assets, including superannuation minus all of the liabilities). If there is a dispute about the value of a particular asset, an independent valuation may need to be conducted.    STEP 2: CONSIDER THE CONTRIBUTIONS OF EACH PARTY After consideration of the entire property pool, the Courts are required to take into account the parties respective contributions which were made during the relationship. The Courts will consider both financial contributions and non-financial contributions. Non-financial contributions generally include contributions as a homemaker and/or contributions to the welfare of the family made, when determining the percentage split between parties. In determining the weight that should be given to the financial and non-financial contributions, the legislation unfortunately does not give much guidance, and each case is determined on a cases-by-case basis at the discretion of the Court, which is of course exercised judicially.   STEP 3: CONSIDER THE SECTION 75(2) FACTORS Section 75(2) factors include all factors which may affect the future needs and earning capacity of a party, such as age, health, respective incomes and earning discrepancies, financial resources, whether one party has the care of a child thus limited their working hours and so on. The usual effect of this step is that a party’s percentage entitlement (which is arrived at in Step Two) may be adjusted up or down, depending on the current and future needs of each party. For example, a person who might be entitled to say, 70% of the property pool based on the assets they brought into the relationship, may find their entitlement reduced by several percent if the other party has a significantly lower earning capacity or is the primary carer of the parties children.   STEP 4: JUST AND EQUITABLE REQUIREMENT As advised above, it is often difficult to advise how much weight is attributed to the contributions made over the course of a relationship and the 75(2) factors, however the guiding principle for the Court is that the final Order made, in the overall sense, must be just and equitable (in other words just and fair).   For further reading, please feel free to peruse the below articles: <a href="/blog-view/seperated-from-your-spouse-over-the-christmas-261">https://www.affinitylawyers.com.au/blog-view/seperated-from-your-spouse-over-the-christmas-261</a> <a href="/blog-view/do-we-need-to-involve-the-court-in-relation-to-248">https://www.affinitylawyers.com.au/blog-view/do-we-need-to-involve-the-court-in-relation-to-248</a> <a href="/blog-view/what-happens-in-a-property-settlement-when-my-236">https://www.affinitylawyers.com.au/blog-view/what-happens-in-a-property-settlement-when-my-236</a> <a href="/blog-view/common-traps-after-separation-235">https://www.affinitylawyers.com.au/blog-view/common-traps-after-separation-235</a> <a href="/blog-view/how-do-i-get-a-divorce-232">https://www.affinitylawyers.com.au/blog-view/how-do-i-get-a-divorce-232</a> <a href="/blog-view/recently-separated-or-considering-separating-will-218">https://www.affinitylawyers.com.au/blog-view/recently-separated-or-considering-separating-will-218</a> <a href="/blog-view/common-misconceptions-of-family-law-201">https://www.affinitylawyers.com.au/blog-view/common-misconceptions-of-family-law-201</a>   Affinity Lawyers is well placed to guide you through this traumatic time, so contact one of our friendly family lawyers in our Gold Coast office today on 07 5563 8970 to discuss your individual circumstances, and to ensure that you are aware of your rights, obligations and where you stand moving forward.  We can also assist with answering any questions you may have in relation to the property settlement process, or in respect of any children involved. MIRROR WILLS & MUTUAL WILLS - WHAT IS THE DIFFERENCE? http://www.affinitylawyers.com.au/blog-view/mirror-wills-mutual-wills-what-is-the-difference-280 2019-07-24T14:00:00+00:00 2019-07-24T14:00:00+00:00

Many people are proactive when it comes to their estate planning matters, and make sure that they have a current and valid will which documents their intentions upon their passing. Couples who are in a relationship and who have children often choose to have their wills drafted to leave everything to each other, and if they do not survive each other, then to their children. This is generally termed a mirror will. Essentially what this means is that the survivor of them receives everything if one person dies, and then when the second person dies the children will share equally whatever is left of the parentâs estate.

Many people are proactive when it comes to their estate planning matters, and make sure that they have a current and valid will which documents their intentions upon their passing.  Couples who are in a relationship and who have children often choose to have their wills drafted to leave everything to each other, and if they do not survive each other, then to their children. This is generally termed a mirror will. Essentially what this means is that the survivor of them receives everything if one person dies, and then when the second person dies the children will share equally whatever is left of the parent’s estate. However, an aspect of this which is often overlooked or not even contemplated, is that the surviving parent is free to change their will at any time, and if they do so, they may choose not to leave any of the estate to the children upon their passing, leaving the children without any of either parents estate. This area also becomes further complicated if the surviving parent were to enter into a new relationship (whether or not their new partner has their own children or not) thereby creating a blended family.  If they then choose to have a new will drafted leaving their estate to their new partner, the children may also be left without any of either parents’ estate if the surviving parent were to pass away. Often, parties who get their wills drafted in the aforementioned manner are under a mistaken assumption that those wills are somewhat set in stone and cannot be changed.  However this is not the case with mirror wills. It is important that people are aware that a person is generally free to change their will at any time that they like (subject to their testamentary capacity and the absence of any other vitiating factors such as undue influence or duress etc) and there is no requirement that they inform anyone else that they have done so. However, if parties have entered into mutual wills, the process to have a will changed is restricted and generally can only be changed or revoked by agreement.  Our Gold Coast Wills & Estate lawyers have had several clients express surprise upon learning the distinction between the two, and so this article has been drafted to illuminate the difference between mirror wills and mutual wills.   WHAT IS A MUTUAL WILL   As noted above, a mutual will is not a mirror will. A mirror will is a will which has reciprocal or mirror like terms whereas a mutual will is a legally binding contract between you and your partner. Although Mirror Wills may be Mutual Wills, there needs to be a specific agreement that the terms of the Wills are to be binding on the parties. A feature of a mutual wills contract will be an express or implied covenant not to revoke or change the will after the death or incapacity of a contracting party. While both parties are alive and have capacity, the wills may only be changed or revoked by agreement.   HOW DO THEY WORK After one spouse dies, the survivor is bound by the terms of the mutual will agreement to dispose of his or her assets as agreed with the deceased. Although the survivor cannot be physically prevented from changing his or her will a mutual will intends to create a legally binding contract which may continue to bind your Estate (and your assets) even after your death.   In the case of a breach of a mutual wills contract, a person who is a party to a mutual wills contract may rely on the contract to obtain damages or specific performance. An aggrieved beneficiary who is not a party to the mutual wills contract can arguably not rely on the contract itself because they are not a party to the contract. However, on the death of a party to a mutual wills contract, equity will recognise a constructive trust over the assets the subject of the mutual wills contract and afford an aggrieved beneficiary an enforceable right in this way.   ADVANTAGES AND DISADVANTAGES OF MUTUAL WILLS An advantage of mutual wills contracts is that they enable both parties to the contract to have a say in who will ultimately be entitled to assets which may not pass into the estate of each individual, such as jointly held assets and assets held by one party only. Further, implementing mutual wills potentially enables a testator to provide benefits for a current spouse while preserving assets for children from a previous relationship. On the other hand, if the survivor wishes to defeat the mutual wills contract, he or she may be able to do so by dissipating the assets the subject of the agreement. In addition, due to the passage of time and changing circumstances of the surviving party, the courts may not uphold the mutual will or render it void due to uncertainty. This may occur by way of example if the survivor enters into a de-facto relationship or an event occurs that was not in contemplation at the time of the mutual will agreement, such as, a beneficiary engages in serious disentitling conduct. Further, in order to be effective in a situation where the survivor does not leave a will in the terms required by the mutual wills contract, it is left up to the intended beneficiaries of the mutual wills contract to: (a)    be aware of the existence of the mutual wills contract; (b)    be aware of the terms of the mutual wills contract; (c)    be aware of the nature of the constructive trust; and (d)    take action to enforce the agreement/constructive trust. In other words, if the intended beneficiaries are not aware of the existence of the mutual wills contract, do not understand its purpose or do not wish to act to enforce it then it may result in the deceased’s wishes not being carried into effect. Unless there are specific reasons that you require a mutual will to be drafted, our experienced and professional solicitors can advise you on the various other avenues and options available to you to ensure that your children are appropriately protected in the event of your death without having the added expense and complications of having a mutual will drafted. At Affinity Lawyers, we do not have a one size fits all estate planning solution.  Each individual client has their own specific needs and requirements, and their own set of circumstances, and what is right for one client will almost certainly not be right for another client. We tailor your estate planning documents to your particular needs, taking into account all of your individual circumstances and requirements to ensure that your testamentary intentions are accurately documented and you are fully appraised of the options available to you. To discuss your  individual estate planning needs or if you require assistance in the administration of an Estate, please do not hesitate to contact our Gold Coast team on<a href="mailto:contact%20our%20Gold%20Coast%20team%20on%20(07)%205563%208970%C2%A0or%20email%20us%20at%C2%A0admin@affinitylawyers.com.au"> (07) 5563 8970 </a>or email us at<a href="mailto:contact%20our%20Gold%20Coast%20team%20on%20(07)%205563%208970%C2%A0or%20email%20us%20at%C2%A0admin@affinitylawyers.com.au"> admin@affinitylawyers.com.au</a>. THE IMPORTANCE OF A CURRENT WILL http://www.affinitylawyers.com.au/blog-view/the-importance-of-a-current-will-273 2019-06-19T14:00:00+00:00 2019-06-19T14:00:00+00:00

A recent decision of the Supreme Court of Queensland has highlighted the importance of firstly, having a valid will, and secondly, understanding the correct way to have your will updated if you change your mind about the contents of your will, including changes to any beneficiaries.

A recent decision of the Supreme Court of Queensland has highlighted the importance of firstly, having a valid will, and secondly, understanding the correct way to have your will updated if you change your mind about the contents of your will, including changes to any beneficiaries. THE CASE In this case, a gentleman ‘Mr M’ made a will in 1994 appointing his daughter as executor and apart from a small bequest to his parents, his daughter was the entire beneficiary of his will.  This will was made with a solicitor, however Mr M kept the original will in his possession. Almost a decade later in 2013, Mr M had a falling out with his daughter, and attended on the Public Trustee of Queensland to have a new will drafted appointing the Public Trustee as the executor, and the RSPCA as the beneficiary of the estate (aside from two minor specified requests).  The new will was subsequently drafted, signed, and held by the Public Trustee on his behalf. The relationship between Mr M and his daughter improved considerably from 2014 onward. In 2016 he attended at the Public Trustee and collected the original will that he made in 2013. In 2018, Mr M was diagnosed with lung cancer, and despite treatment, his condition was deteriorating rapidly, requiring him to be admitted as an inpatient to hospital.  Prior to going into hospital, he gave a note to his next door neighbour to ask him to let his daughter know if he did not come out of hospital, and also words to the effect that his daughter would find his will (to her) and other items in the property. During his time in hospital, Mr M’s daughter visited him and they had several discussions wherein he told her that he had made a will in 2013 when he was angry at her and that he had ‘picked that will up so that there was no confusion in the future’ and that his ‘1994 will was what he wanted for his last wishes’.  He also told her that he intended to leave everything to her, and had also made comments to the same effect to others. After these discussions, his daughter located the 1994 will in his filing cabinet in a file marked ‘Wills’, and notably, the 2013 will was not contained in that folder. Upon taking the 1994 will in to Mr M in hospital, and asking if he wanted to re-do the will as his parents were now deceased, Mr M replied ‘no’ and that he was okay with how it was.  He also confirmed at that time that the document was his ‘current will’. Mr M died 10 days later. ISSUES Unfortunately for Mr M and his daughter, Mr M was operating under the mistaken belief that if he destroyed the 2013 will, then the 1994 will would become his current will. The Succession Act 1981 (Qld) governs wills and succession matters in Queensland, and section 13 of the Act specifies various ways in which a will can be revoked, and these include ‘revocation by means of a later will, or by a document declaring an intention to revoke the will, or by the testator destroying the will with an intention to revoke it, or writing on the will or otherwise dealing with it in a way which satisfies the Court that the testator intended to revoke it’. In this case, the Court found that Mr M had in fact effectively revoked his 1994 will when he executed his later will in 2013.  The mere statements that he made that he intended for his 1994 will to be his ‘current will’ were not enough to satisfy the court that he intended to revive the revoked will and because his 2013 will could not be found, it was held that he had died ‘intestate’ or without a will. The administration of an intestate estate follows Parts 1 and 2 of Schedule 2 of the Succession Act, and because Mr M left no surviving spouse, the estate would be distributed equally between his two children, his daughter, and a son he had from an earlier marriage (even though Mr M had no relationship with him due to irreparable differences). So, in this case at least, Mr M’s daughter will still likely receive 50% of Mr M’s estate despite Mr M’s failure to have a current will at the time of his death.  However, it is important to be aware that the situation may have been radically different if Mr M had a spouse or other children who were alive at the time of his death, and his daughter may have ended up receiving only a small amount, which appears to be contrary to his intentions. Nevertheless, Mr M’s oversight in relation to the will means that instead of 100% of his estate (subject to any rights Mr M’s son may have had under family provision legislation) going to his daughter, she is likely only going to receive 50%. This case again highlights the importance of having a current, valid will in place which accurately records your wishes and in the event that your wishes change, that you obtain professional advice in relation to drafting a new will. Our Gold Coast based wills & estates team have lawyers who are experienced in this area of law, and can guide you through the process to ensure that your will is current, and reflects your wishes upon your passing. To discuss your  individual estate planning needs or if you require assistance in the administration of an Estate, please do not hesitate to contact our Gold Coast team on<a href="mailto:contact%20our%20Gold%20Coast%20team%20on%20(07)%205563%208970%C2%A0or%20email%20us%20at%C2%A0admin@affinitylawyers.com.au"> (07) 5563 8970 </a>or email us at<a href="mailto:contact%20our%20Gold%20Coast%20team%20on%20(07)%205563%208970%C2%A0or%20email%20us%20at%C2%A0admin@affinitylawyers.com.au"> admin@affinitylawyers.com.au</a>. SEEKING AN EXTENSION TO FILE AN UNFAIR DISMISSAL APPLICATION http://www.affinitylawyers.com.au/blog-view/seeking-an-extension-to-file-an-unfair-dismissal-276 2019-06-19T14:00:00+00:00 2019-06-19T14:00:00+00:00

At Affinity Lawyers, we provide both employers and employees with legal advice in relation to many matters which fall under the general umbrella of Employment Law, such as employment agreements, employment contracts, unfair dismissals, general protections claims and more. Following on from our recent article in relation to Unfair Dismissal applications and the strict time limits that apply, we are aware that there are instances where you may need to file an unfair dismissal application out of time so have put together some information in relation to these types of applications.

At Affinity Lawyers, we provide both employers and employees with legal advice in relation to many matters which fall under the general umbrella of 'Employment Law', such as employment agreements, employment contracts, unfair dismissals, general protections claims and more. Following on from our recent article in relation to Unfair Dismissal applications and the strict time limits that apply (read it <a href="/blog-view/unfair-dismissal-applications-strict-time-limits-266">here</a>), we are aware that there are instances where you may need to file an unfair dismissal application out of time so have put together some information in relation to these types of applications.   PREPARING AN APPLICATION FOR UNFAIR DISMISSAL Our employment lawyers are skilled at interpreting the relevant legislation and case law on these types of matters, and after one of our experienced employment lawyers considers your matter in detail, they will be able to determine the best course forward. If our lawyers determine that you are eligible to lodge a claim for unfair dismissal despite being outside of the timeframe, the first step would be for Affinity Lawyers to prepare an application to Fair Work Australia seeking an extension to file an Unfair Dismissal Application out of time. However, it is important to be aware that these types of applications are not just routinely granted, and the Fair Work Commission may extend the time for filing an Unfair Dismissal Application only if the Fair Work Commission is satisfied that there were 'exceptional circumstances' for not filing the application within 21 days of the dismissal taking effect. In coming to their determination as to whether there were exceptional circumstances, the Fair Work Commission will, pursuant to section 366 of the Fair work Act 2009 (Cth), take into account the following: (a)          the reasons for the delay; (b)          any action taken by the former employee to dispute the dismissal; (c)          prejudice to the employer (including prejudice caused by the delay); (d)          the merits of the application; and (e)          fairness between the former employee and other persons in similar positions. As detailed above, our lawyers will be able to provide you with legal advice in relation to whether any exceptional circumstances apply to your matter, and to your prospects of success in lodging an application.    WHAT ARE EXCEPTIONAL CIRCUMSTANCES? <ol> <li>What amounts to exceptional circumstances is a complex question which always requires a consideration of all the circumstances. </li> <li>To provide some insight as to what is considered exceptional circumstances, it can be said that the word 'exceptional' describes a circumstance out of the ordinary course, or unusual, or special, or uncommon.</li> <li>In other words, to be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.</li> <li>Notably, ignorance of the timeframe for lodgement is not on its own an exceptional circumstance.</li> </ol>   DO YOU NEED TO MAKE AN APPLICATION? If you have been dismissed, or you have dismissed an employee, our experienced and professional Gold Coast employment law team are on hand to guide you through the process. We can also provide you with tailored legal advice in respect of any employment law matters, including employment agreements, contractors agreements, employment awards, employment disputes, and we can also answer any queries you may have. Contact our experienced employment law team at Runaway Bay today on 5563 8970 to discuss your employment law requirements. THE END OF PAPER CERTIFICATES OF TITLE http://www.affinitylawyers.com.au/blog-view/the-end-of-paper-certificates-of-title-277 2019-06-19T14:00:00+00:00 2019-06-19T14:00:00+00:00

The paper certificate of title is the latest casualty in the slow shift towards become a paperless society thanks to the passing of the Land, explosives and Other Legislation Amendment Act 2019 last month. While this will likely be a positive change for those who deal with conveyancing matters regularly, it is a move that is likely to unsettle some of the older members of society, and during its settling in period, is likely to cause some confusion.

The paper certificate of title is the latest casualty in the slow shift towards become a paperless society thanks to the passing of the Land, explosives and Other Legislation Amendment Act 2019 (‘OLAA’) last month. While this will likely be a positive change for those who deal with conveyancing matters regularly, it is a move that is likely to unsettle some of the older members of society, and during its 'settling in' period, is likely to cause some confusion. In order to give effect to the amendments contained within the OLAA pertaining to Certificates of Title, various sections of the Land Title Act 1994 (Qld) (' LTA')  are being removed, with the effect that from the 1st October 2019 paper certificates of title will no longer be regarded as an ‘instrument’ under the LTA and will no longer be used. In practical terms, this means that even if you are presently holding an original certificate of title for your property, as of the 1st October 2019, the certificate will become nothing more than a sheet of paper and the electronic title register maintained by the Titles Registry will become the record and source of property ownership information. The shift to electronic titles registers has taken place Australia-wide, however while there are some states in Australia that still issue a paper certificate of title either upon registration of an interest in land or upon a request from the landowner, all of the states manage electronic titles registers, and the phasing out of all paper certificates of title appears to be only a matter of time. Many opponents of the shift to paperless titles registers were concerned about the security implications and the increased risk of fraud associated with property transactions. In fact, electronic title registrations, in conjunction with electronic conveyancing (PEXA), means that security is tightened as the lodgement of documents occurs simultaneously in the electronic workspace, reducing the gap of some 4 weeks or so which can often occur when settlements are physically conducted. There have been numerous safeguards built in to the electronic registers, the electronic conveyancing regime and its associated platforms such as multi-factor authentication and sophisticated algorithms to detect suspicious behaviour, as well as an increased focus on relevant participants carrying out  thorough identification checks, tightening up their own online security and verifying client instructions in multiple ways to ensure their veracity is maintained. Affinity Lawyers on the Gold Coast completed the first electronic Trustee Transfer in Queensland through PEXA in November 2017, and we welcome the shift to electronic conveyancing to provide our clients with secure, swift and straight-forward conveyancing transactions. You can read our earlier article about the launch <a href="/blog-view/affinity-lawyers-has-helped-to-make-history-by-227">here</a>.  As always, should you have any queries regarding the sale or purchase of property, or any other conveyancing or property related enquiries, please contact our friendly Gold Coast team on 07 5563 8970. INTERNATIONAL WILLS http://www.affinitylawyers.com.au/blog-view/international-wills-270 2019-05-12T14:00:00+00:00 2019-05-12T14:00:00+00:00

As we become an increasingly globalised society, it is becoming more common for Estates to include foreign assets. If you have assets located overseas, whether it be real property (like a house or land) or personal property (such as bank accounts, vehicles, boats and household items), advice should be sought and careful consideration given to your foreign assets during the estate planning process in order to avoid unforeseen issues arising.

As we become an increasingly globalised society, it is becoming more common for people’s Estates to include foreign assets.  If you have assets located overseas, whether it be real property (like a house or land) or personal property (such as bank accounts, vehicles, boats and household items), advice should be sought and careful consideration given to your foreign assets during the estate planning process in order to avoid unforeseen issues arising. There are several factors which can affect an estate that includes foreign assets, such as citizenship, nationality, residence, and the laws and policies of the country in which the assets are located. THE LAW In an attempt to simplify succession law, the Australian Government agreed to the Convention Providing a Uniform Law on the Form of an International Will 1973 (the Convention), which came into force in Australia on 10 March 2015. The purpose of the Convention was to introduce a new form of Will, known as an 'International Will', which is recognised as valid in all countries that are party to the Convention. One of the main benefits of having an internationally recognised Will is its ability to reduce the likelihood of conflict arising if it is unclear which country’s laws apply to the distribution or administration of a particular asset in your estate. However, an International Will is subject to various requirements and formalities prescribed by both the Convention and Australian law. THE FORMALITIES In practice, for an International Will to be valid, it will need to be signed by the Testator (Will maker) in the presence of two independent witnesses, and a third witness who is an 'authorised person' such as a lawyer or a notary public. In addition to witnessing the Will, the authorised witness is required to complete a certificate confirming that the International Will was prepared in accordance with the Convention. THE FOLLOWING COUNTRIES ARE PRESENTLY PARTIES TO THE CONVENTION  <table border="0" cellspacing="0" cellpadding="0"> <tbody> <tr> <td width="249" valign="top"> <ul> <li>Australia </li> <li>Belgium</li> <li>Bosnia and Herzegovina</li> <li>Canada</li> <li>Croatia</li> <li>Cyprus </li> <li>Ecuador</li> <li>France</li> <li>The Holy See (Vatican City)</li> <li>Iran</li> </ul>   </td> <td width="227" valign="top"> <ul> <li>Italy</li> <li>Laos</li> <li>Libya</li> <li>Niger</li> <li>Portugal</li> <li>Russian Federation</li> <li>Sierra Leone</li> <li>Slovenia</li> <li>United Kingdom</li> <li>United States of America</li> </ul> </td> </tr> </tbody> </table> THINGS TO CONSIDER Although an International Will may be beneficial in certain circumstances, it may not be appropriate if the laws of the other country are significantly different from the laws in Australia, or where there may be interpretation issues due to any language differences. In these circumstances, a more prudent solution may be to have separate Wills prepared in each country. However, if separate Wills are made, care must be taken to ensure that each Will is properly drafted, and is effective in the country in which it intends to apply. In this respect, it is paramount that your lawyer in Australia and overseas are aware that there are Wills located in other countries, so that they limit the scope of the Will to that country and do not inadvertently revoke your foreign Wills. Alternatively, it may be appropriate to consider whether your foreign assets are still relevant to your needs. If retaining the asset is of no great benefit to you, it may be wise to consider disposing of the asset, or transferring the asset to Australia before your passing to avoid complications in the administration of your Estate. Similarly, if you have foreign citizenship or foreign connections that could impose tax implications on you, then it may be appropriate to consider renouncing the citizenship or foreign connection during your lifetime. In this regard, you should consult with an industry tax professional or accountant as to whether any tax implications (such as Capital Gains Tax) will apply when disposing of assets overseas or if you intend to distribute assets to a beneficiary that is not a resident of the country where your assets are located. To discuss your  individual estate planning needs or if you require assistance in the administration of an Estate, please do not hesitate to <a href="http://www.affinityconveyancinglawyers.com.au/template.php?page=contact_us">contact us on (07) 5563 8970 or email us at admin@affinitylawyers.com.au</a> AFFINITY LAWYERS RELOCATION http://www.affinitylawyers.com.au/blog-view/affinity-lawyers-relocation-271 2019-05-12T14:00:00+00:00 2019-05-12T14:00:00+00:00

We are pleased to announce that Affinity Lawyers have relocated our office, a short distance, to larger premises, being Suite 8/465 Oxley Drive, Runaway Bay Gold Coast. The paramount consideration in the relocation decision, was the ability to remain up on the Northern Gold Coast, thereby enabling convenience and exceptional service levels, while continuing our expansion to meet the needs and expectations of our clients.

We are pleased to announce that Affinity Lawyers have relocated our office, a short distance, to larger premises, being Suite 8/465 Oxley Drive, Runaway Bay Gold Coast. The paramount consideration in the relocation decision, was the ability to remain up on the Northern Gold Coast, thereby enabling convenience and exceptional service levels, while continuing our expansion to meet the needs and expectations of our clients. Please see below map, and if you would kindly update your records - all other details such as phone and facsimile numbers remain the same:   <img src="/images/editorimages/affinitylawyersmap.png" alt="" width="350" height="417" /> As always, should you have any queries or require legal assistance please contact our office on 07 5563 8970 or email on <a href="mailto:admin@affinitylawyers.com.au">admin@affinitylawyers.com.au</a>. INJUNCTIONS http://www.affinitylawyers.com.au/blog-view/injunctions-272 2019-05-12T14:00:00+00:00 2019-05-12T14:00:00+00:00

An injunction can be described as a court order by which one party is required to perform, or is restrained from performing, a particular act. An example is a breach of confidential information from an employer, such as a client list that is being used by a former employee to build a business in competition with the former employer. If this has occurred the employer may have a right to obtain an injunction against the former employee pending a final hearing of the dispute. Seeking and obtaining an urgent injunction can be an important step in protecting your business from loss of profits due to an unlawful act.

An injunction can be described as a court order by which one party is required to perform, or is restrained from performing, a particular act. An example is a breach of confidential information from an employer, such as a client list that is being used by a former employee to build a business in competition with the former employer. If this has occurred the employer may have a right to obtain an injunction against the former employee pending a final hearing of the dispute. Seeking and obtaining an urgent injunction can be an important step in protecting your business from loss of profits due to an unlawful act. This article touches upon some of the general legal principals pertaining to urgent injunctions espoused by leading Judiciary members. OVERARCHING PRINCIPLE The relevant factors considered by the court on an interlocutory injunction are:   <ol> <li>a prima facie case;</li> <li>balance of convenience favours the granting of an injunction;</li> <li>the adequacy of damages as an alternative to an injunction; and</li> <li>discretionary factors.</li> </ol>   PRIMA FACIE CASE   Despite some historical judicial ambiguity over the adoption of the correct interpretation pertaining to a prima facie case, the confusion was arrested Australian Broadcastin Corp v O'Neill (2006) with the clarification through Gummow and Hayne JJ as follows:   The first [inquiry] is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted… [In other words]…a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.   BALANCE OF CONVENIENCE   The below discretionary factors have been found often to be a decisive factor when considering the balance of convenience:   <ol> <li>hardship to either party;</li> <li>irreparable harm;</li> <li>undertakings as to damages;</li> <li>impossibility or futility of performance; and</li> <li>the unclean hands equitable maxim.</li> </ol>   IRREPARABLE HARM   In Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349, Sachs LJ stated:   The standard question in relation to the grant of an injunction, "Are damages an adequate remedy", might perhaps, in the light of the authorities of recent years, be rewritten: "Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?   CONFLICTS OF EVIDENCE Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] AC 396 that in the context of an application for an interlocutory injunction: It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.   BREACH OF CONFIDENCE   In Coors Pavey Whiting & Byrne v Collector of Customs (Vic) Gummow's J, dissenting judgement neatly abridged the considerations and test to be adopted when considering a breach of confidence: It is now well settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidence (and is not for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of the information. … It may also be necessary… that unauthorised use would be to the detriment of the plaintiff.   THE RELEVANT FACTORS In Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd, Gowans J outlined the following six factors pertaining to a determination as to whether a document, information or design is a trade secret (commercial confidence);   <ul> <li>“the extent to which information is known outside the plaintiff's business;</li> <li>the extent to which the information was known by employees and others involved in the business (including the extent of the measures taken by the plaintiff to guard the secrecy of the information);</li> <li>the value of the information to the plaintiff and to its competitors;</li> <li>the amount of effort or money expended by the plaintiff in developing the information; and</li> <li>the ease or difficulty with which the information could be properly acquired or duplicated by others.”</li> </ul>   RECIPIENT OF CONFIDENTIAL INFORMATION – CLEAN HANDS In Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd, it was crystallised that a third party may be joined and liable for injunctive relief: Anyone who aids, abets in or procures the breach of contract of confidence may be enjoined together with the servant against the use of the information. But like him, I find that the defendant concerned, here the defendant company took the property in the machines with notice of the equity. It adopted Grigg's conduct, and was infected by his and Ashcroft's knowledge. It, too, is liable to injunctive relief. If you would like any further information or have any inquiries pertaining to an injunction, please do not hesitate to contact our office on (07) 5563 8970. WHAT IS A TESTAMENTARY TRUST? http://www.affinitylawyers.com.au/blog-view/what-is-a-testamentary-trust-267 2019-03-31T14:00:00+00:00 2019-03-31T14:00:00+00:00

Considered and strategic estate planning is a crucial part of any successful wealth protection strategy, and Affinity Lawyers have an experienced and professional wills and estate team in place to provide you with legal advice tailored to your individual circumstances. Our Wills & Estate lawyers, based on the Gold Coast, can prepare a premium Affinity Lawyer Will or an Affinity Lawyers Wealth Protection Will (a testamentary Trust Will) for you, depending on your needs.

Considered and strategic estate planning is a crucial part of any successful wealth protection strategy, and Affinity Lawyers have an experienced and professional wills and estate team in place to provide you with legal advice tailored to your individual circumstances. Our Wills & Estate lawyers, based on the Gold Coast, can prepare a premium Affinity Lawyer Will or an Affinity Lawyers Wealth Protection Will (a testamentary Trust Will) for you, depending on your needs. What is a Testamentary Trust? A Testamentary Trust is a trust established in someone’s Will.    It comes into existence only when the person dies.  A Will can establish more than one Testamentary Trust, such as a separate trust for each beneficiary. Who Controls the Assets? Whoever is named in the Will as trustee will control the trust’s assets, at least at first instance.  Like any trust, a Testamentary Trust can be as flexible or as fixed as you want.  The trustee can be given full discretion, or no discretion as to who should receive income and capital from the trust, and when they should receive it. Why Are They Used? Testamentary Trusts can be used for a variety of purposes including:   -    Reducing tax. -    Protecting spendthrift beneficiaries from themselves. -    Caring for children when they are young. -    Caring for beneficiaries who may have a disability. -    Providing some scope for keeping an inheritance out of the reach of the Family Court, where the beneficiary is involved in a Family Law property dispute. -    Protecting inheritances from a beneficiary’s creditors. -    Providing some scope for avoiding an unintended loss by a beneficiary of their Government-sources pension or other benefit.   Using a Testamentary Trust for income splitting with young children and/or a partner who does not work full time   Who would benefit?   -    Families with small children and/or a person whose partner does not work full time. -    Those who would need extra income to support the surviving family members should a parent die. -    Those for whom minimising tax is important.   How does it work?   <img src="/images/editorimages/capture.png" alt="" width="308" height="286" /> Benefits Trust income distributed to children, of any age, will be taxed at adult rates rather than the penalty rates that normally apply to children's’ unearned income.  The trustee can have full discretion as to who receives trust income and capital, or restrictions can be placed on the persons who are permitted to receive trust income and capital. Our solicitors can go through the benefits of a Testamentary Trust with you in further detail during your estate planning consultation. Estate Planning and Asset Protection Most people would be more than happy to receive an inheritance.  But for those who have not put in place asset-protection strategies or who could be facing bankruptcy, this can cause a problem. People in financially high-risk occupations, such as professionals, business owners and company executives, will often prefer to not receive inherited assets in their own name.  To solve the problem they can ask for there to be included an appropriate provision, such as a Testamentary Trust, in the Wills of people likely to leave them assets. Example - John owned his own business which, during an economic downturn, was placed in liquidation.  As a result, John was made bankrupt.  A year earlier, John received an inheritance of $250,000.  As John received his inheritance in his own name, it was able to be taken and used to pay creditors of John’s business.  If John’s parents wills had been Affinity Lawyers Wealth Protection Wills, John’s inheritance may not have been available to creditors of his business. Example - Anne owned and ran a high-profile design company.  She had deliberately ensured that most of her assets were in her husband’s (Bob’s) name.  At least that way, if her business went bad, their home and savings would be protected.  When Anne’s parents died, she received the family beach house.  Though the business was doing well, its future success was not guaranteed.  To protect the beach house from a possible trustee in bankruptcy, she transferred it to a trust and paid $23,000 in stamp duty.  This expense could have been avoided if Anne’s parents wills had been. For more information about strategies for planning your estate or an Affinity Lawyers Wealth Protection Wills contact one of our experienced Gold Coast Lawyers on 5563 8970. SEPARATION, PROPERTY SETTLEMENT AND DIVORCE â WHAT THESE TERMS REALLY MEAN http://www.affinitylawyers.com.au/blog-view/separation-property-settlement-and-divorce-what-268 2019-03-31T14:00:00+00:00 2019-03-31T14:00:00+00:00

The family law solicitors based in our Gold Coast office have noticed lately that the terms separation, property settlement and divorce are often used in the incorrect circumstances, especially when someone going through a separation is chatting to family and friends, and the incorrect use of these terms can lead to confusion. To clear up any confusion, we thought we would go over these terms, and explain a little bit more about them in easy to understand language, so if you are going through a separation, you know the general steps involved and what happens at each step along the way.

The family law solicitors based in our Gold Coast office have noticed lately that the terms 'separation', 'property settlement' and 'divorce' are often used in the incorrect circumstances, especially when someone going through a separation is chatting to family and friends, and the incorrect use of these terms can lead to confusion.   To clear up any confusion, we thought we would go over these terms, and explain a little bit more about them in easy to understand language, so if you are going through a separation, you know the general steps involved and what happens at each step along the way. Separation Firstly, 'separation' is relatively straightforward. This is the process of severing the relationship between two parties and generally occurs when it is communicated by one party to the other (or both agreeing) to the separation or when one party moves out and the parties commence living separate lives. Separation can be between de facto parties or married parties, and the actual act of separation does not necessarily finalise the relationship between the parties, as there may be property involved (house, cars, furniture etc), children of the relationship, or other circumstances that need to be properly finalised in order for both parties to in fact commence living separate lives. This is where the term 'property settlement' comes in. Property Settlement While people often use the term 'divorce' when contacting our family lawyers, they are often actually referring to the 'property settlement' process rather than the actual process of obtaining a divorce.    'Property settlement' is the process of dividing the asset pool of the parties (comprised of houses/land, cars, furniture, superannuation and other tangible and non-tangible assets) between the parties.  The parties can do this themselves if the separation was amicable or if the property pool is small (i.e. they were renting and they each just agree to take their own cars/superannuation etc), or this process can involve a lawyer if the property pool is larger, or if the parties are not agreeing on the distribution of assets. Even if the parties are amicable, we would always strongly recommend that whatever agreement is reached between the parties is properly documented by a solicitor to ensure that it in fact severs all ties between the parties (as far as is practicable).  Many people are not aware that their ex-spouse could in fact have a claim against property that has been accumulated by them post-separation (and sometimes 10 or 20 years down the track!) so they are able to move forward and commence living their lives separately without issues cropping up later down the track. There are several different options available to document and formalise a property settlement, and each option has its own pros and cons, and there are also various associated costs to take into account with the different options.  For example, an agreement can be formalised by way of: <ul> <li>Consent Orders; or</li> <li>a Binding Financial Agreement.</li> </ul> The timeframes in which you can formalise your property settlement vary (depending on whether you are married or de facto at the time of separation, or have divorced since separation) and therefore we would strongly encourage you to organise a consultation with one of our friendly family lawyers as soon as possible after separation so you are aware of these time frames. Divorce As detailed above, the process of applying for a divorce is separate to the property settlement process. A 'divorce' is essentially the process of obtaining a legal Certificate of Divorce in order to terminate the marriage between the parties.  It is done by way of an application to the court and can occur on its own without a property settlement, or can be done at the same time as a property settlement (albeit it remains a separate application and process). It is advisable that before undertaking the divorce application process you seek legal advice. Our experienced solicitors can help you to understand the relevant rights and responsibilities that you may need to consider prior to lodging an application and the law that applies to your particular case. Please contact our experienced and friendly Family Law Team at Affinity Lawyers on the Gold Coast today on 07 5563 8970 to discuss your query. WHAT DO YOU NEED TO KNOW ABOUT COMMERCIAL LEASES AND RETAIL SHOP LEASES? http://www.affinitylawyers.com.au/blog-view/what-do-you-need-to-know-about-commercial-leases-269 2019-03-31T14:00:00+00:00 2019-03-31T14:00:00+00:00

We have many clients based on the Gold Coast and State-wide who are expanding into or starting a commercial enterprise and although itâs an exciting time when you are starting a business and seeking commercial premises, or when you purchase commercial premises and are looking for your first retail tenant, there are some important things to be aware of in relation to Commercial Leases and Retail Shop Leases in Queensland. It is most certainly not the case that a Commercial Lease or Retail Shop Lease is one size fits all, and it is vitally important that the document that you sign contains all of the clauses that you need, and that those clauses which are overly onerous, or do not apply are removed.

We have many clients based on the Gold Coast and State-wide who are expanding into or starting a commercial enterprise and although it’s an exciting time when you are starting a business and seeking commercial premises, or when you purchase commercial premises and are looking for your first retail tenant, there are some important things to be aware of in relation to Commercial Leases and Retail Shop Leases in Queensland. It is most certainly not the case that a Commercial Lease or Retail Shop Lease is one size fits all, and it is vitally important that the document that you sign contains all of the clauses that you need, and that those clauses which are overly onerous, or do not apply are removed.  It is also important that you understand your rights, responsibilities and obligations under the lease before signing it, again to ensure that the lease document accurately reflects the agreement reached between the parties, and that you are fully aware of any issues which could affect your business in the future. We have written an article on the types of terms and conditions that are usually covered in a lease, which you can read <a href="/blog-view/leasing-business-premises-250">here</a>. The last thing either a lessee or a lessor wants is to be stuck in a longterm lease containing unforgiving clauses, or terms and conditions that do not suit them. Generally speaking, there are two broad categories of commercial leases to be aware of in Queensland, and if you are starting a business or purchasing commercial premises you will either be dealing with a general commercial lease or a Retail Shop Lease (depending on the type of business or the premises location). Retail Shop Leases differ from commercial leases in several ways.  Commercial leases tend to be associated with commercial property designed to cater for specific business purposes, such as offices, warehouses or industrial areas.  Further, it is also important to be aware that commercial leases tend to offer less legal protection for parties as they are not specifically protected by Statute. Retail Shop Leases on the other hand are generally those within 'retail shopping centres' or which are wholly/predominantly used for the carrying on of a retail business identified in the Retail Shop Leases Act 1994 (RSLA) In contrast to commercial leases, the RSLA stipulates various requirements, including but not limited to disclosure requirements, minimum lease standards, rent reviews, core trading hours, lease assignment protocol and dispute resolution processes in respect of Retail Shop Leases. While it is important to seek independent and specific legal advice if you are considering entering into either a commercial lease or a Retail Shop Lease, if you are contemplating entering into a Retail Shop Lease you should be aware that there are strict disclosure obligations which apply. In this respect, both the lessor/landlord and lessee/tenant must comply with the strict disclosure obligations under the RSLA, which include, but are not limited to: - The Landlord must provide the Tenant with a completed Disclosure Statement, together with a draft copy of the lease, at least 7 days prior to the Tenant signing the lease; - The Tenant must likewise provide the Landlord with a Disclosure Statement prior to entry into the lease; - Tenants must obtain a Legal Advice Report from a Lawyer and a Financial Advice report from an Accountant and provide same to the Landlord We reiterate that a failure to comply with certain obligations under the RSLA can result in a party being able to terminate the lease, or suffer a financial detriment. Navigation of the RSLA can be complex and time consuming, and entry into a Commercial Lease can be just as daunting. This is why we always recommend that you obtain specific and tailored legal advice from one of our experienced Commercial Lawyers, prior to signing any lease documentation.  For your convenience, our Commercial team are on hand to assist you from the beginning of the process right through until completion, so please feel free to contact our Gold Coast office today on 07 5563 8970 to discuss your matter.