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Areas Of Practice 2018-07-24T16:31:21+00:00

‘GUARANTOR’ AND ‘BORROWER’ ADVICE CERTIFICATES

At a fixed cost, these (formally entitled ‘Independent Solicitors’ Certificates’) are often required by the financial institution of a person(s) who is acting as a third party guarantor, surety mortgagor, or indemnifier for a principal borrower (for example, on a home loan for one of your children). They protect both you and your bank, reducing fees and your liability. There are requirements under legislation as to the information that a prospective guarantor/borrower must be provided. A related instrument is a Superannuation Splitting Advice Certificate, which will usually be required by a Super Trustee before any financial settlement upon separation of assets.

PREPARATION OF WILLS

Everyone should have a Will, particularly if you have children, are married, own a house or have substantial assets. Wills should also be reviewed regularly.

If you don’t have a will, the rules of intestacy govern who your beneficiaries will be, but a will is the only way to ensure your wishes are carried out after you’re gone.

Many things are considered in preparing a Will, including taxation and superannuation obligations, contingencies such as if executors are unable to act upon your passing, and substitution of potential beneficiaries. A testamentary trust can be created for asset protection and tax minimisation.

The concept of Family Provision allows – in fact requires – a Court to order from your estate for the adequate provision of an ‘eligible person’. If you wish to challenge a Will on these grounds, or conversely to prevent a claim, proper advice is crucial.

PROBATE AND ADMINISTRATION OF DECEASED ESTATES

There are strict requirements imposed by the Supreme Court for an application for Probate (or in the case where there is no Will, Letters of Administration). It is crucial to the implementation of the Deceased’s wishes that they are correct. Most institutions will not enable administration of the Will without Probate.

Administration of the Estate imposes strong obligations on Executors, breach of which invokes harsh penalties. In addition to distribution, the tasks of satisfying creditors, identifying the burden of debts, and complying with tax obligations, add complexity.

ENDURING POWERS OF ATTORNEY AND GUARDIANSHIP

You can ‘lose capacity’ (in a legal sense) at any age, and these instruments are crucial to provide certainty. Cost of preparation is relatively low. An Enduring Power of Attorney (EPA) nominates someone (known as an attorney) to manage your financial affairs.

An Enduring Power of Guardianship (EPG) allows someone to make personal, lifestyle and treatment decisions on one’s behalf, where you are unable to make reasonable judgments, and an Advance Health Directive (AHD) allows another to make decisions about one’s future medical treatment.

CONTRACTS AND COMMERCIAL

Contracts may often appear simple, but loopholes and simple wording can have considerable commercial consequences. Likewise, if you desire to be released from a contract, options abound. Leases (particularly commercial leases) are a form of contract to which special provisions apply.

Business Planning is another crucial area, including Non-Disclosure Agreements, Non-Compete Agreements, and Service Agreements.

SEPARATION AND BINDING FINANCIAL AGREEMENTS

There are a few options available to achieve a fair, equitable and simple division of property, including to Divide Property by Agreement, however this approach is fraught with danger. The only legally binding form of agreement (and one which can avoid duties and taxes) is a registered Binding Financial Agreement (BFA). They can be made before (these are commonly known as ‘prenups’), during or after a relationship, and state how your assets, liabilities, resources and other finances will be divided. BFAs are particularly crucial when children exist.

TRUSTS

Properly drafted Trusts can provide crucial asset protection, tax minimisation, and provision for family and friends, both during your life and after.

DEBT MANAGEMENT

Most debts, including with government agencies, can be negotiated before interest and other penalties accrue. Negotiated Debt Agreements, which form a binding agreement between you and your creditors to pay what you can afford in total settlement of your debts, can also provide relief.

OTHER MATTERS

We regularly act in less common matters including:

  • Defamation
  • Release of Superannuation
  • Restrictive Covenants
  • Real Property Caveats
  • Mediation
  • Employment Law
  • Adverse Possession
  • Residential Tenancy
  • Neighbour Disputes
  • Workers’ Compensation

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