In our previous blog ‘ Family Law Parenting Terminology 101 – The Basics’ we shared that learning about family law parenting terminology can feel similar to learning a foreign language. It can be confusing and overwhelming. Unfortunately the terminology used in family law property and financial settlement matters isn’t much easier.

There are lots of acronyms and legal jargon and people often feel like they need a linguistics degree or like they need to constantly look up words in a dictionary or thesaurus. At New Way Lawyers our caring team of family lawyers take the time to explain not only all the unfamiliar terminology but also the processes and procedures of the family law system, meaning everything feels less overwhelming.

Many people still however find it useful to have a ‘cheat sheet’ or a reference point to remind them of the meaning of some of the commonly used words. We have therefore put together this helpful summary of commonly used terms in family law property and finance matters.

Binding Financial Agreement

A private agreement, under the Family Law Act, that sets out how the parties to a marriage or defacto relationship will distribute their property and finances in the event of separation or divorce. These agreements can be made before, during or after a defacto relationship or marriage. Certain requirements must be met for the agreements to be legally binding – for example the agreement must be in writing, signed by both parties and independent legal advice must have been received by each person prior to signing.

Caveat

A caveat is a formal notice or warning attached to the title of a property that stops the registered owner and other people from dealing with the property.

Conciliation Conference

A conciliation conference is a court ordered mediation between the parties to a property / financial dispute which is facilitated by a Registrar of the Court. The conciliation conference provides an opportunity for the parties to reach agreement and resolve their dispute.

Enforcement Order

A further order made by a Court to make a party comply with a previous order. In addition to enforcing an order, the family courts can also punish the non complying party.

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Financial Disclosure

The exchange of financial information and documentation between the parties to a property / financial matter to provide evidence of past and future financial circumstances. The financial information and documentation exchanged depends on the individual circumstances of the matter but can include payslips, tax returns, bank statements, superannuation statements, loan documents, credit card statements, financial statements for business etc.

Financial Statement

A prescribed court form setting out details of a parties current income, expenses, assets, liabilities and financial resources. A financial statement must be filed with the Court in property settlement and spousal support matters.

Financial Resources

A future expectation or interest to income, assets or finances, for example distributions under a will or a trust, long service leave entitlements, or a pending personal injury claim.

Forensic Accountant

A specialist accountant who examines and investigates the finances of an individual or a company for possible fraudulent activity or to trace funds or assets.

Property Orders

A legally binding declaration made by the Court regarding the distribution of assets and liabilities between the parties to a marriage or defacto relationship. Property Orders can be made as consent orders, meaning the parties have agreed to the orders and the Court has reviewed and approved them. Alternatively the orders can be made by the Court following a hearing. Property orders can be either interim orders or final orders.

Property Pool

All the assets and liabilities to be distributed and divided between parties to a property dispute.

Property proceedings

A court matter regarding issues and disputes about how the assets and liabilities of the parties to a de facto relationship or marriage are to be divided. The Court adopts a five step process that is used to determine each parties entitlement to property / financial settlement. Briefly the five steps are as follows:

• (1) Determine whether it is just and equitable to adjust the existing property / financial interests of the parties.
• (2) Determine the assets and liabilities of the parties (including assets and liabilities in the sole names of the parties, the joint names of the parties of the joint names of one or the parties and a third party).
• (3) Assess the contributions made to the assets and the relationship by each party. These contributions include initial contributions, financial contributions, non financial contributions and post separation contributions.
• (4) Assess the future needs of the parties such as their age and state of health, income and earning capacity, care of children of the relationship, length of the relationship and how that has impacted on a party’s earning capacity etc.
• (5) Assess whether the outcome is fair and just. At the end of this five step process the parties entitlements to property settlement are determined as a % division of available net property pool.

Spousal Maintenance

Spousal maintenance is the payment of financial support by one party to the other party of a marriage or de-facto relationship in the event that they are unable to financially support themselves. Spousal maintenance can be paid as either periodic maintenance on either a weekly, fortnightly or monthly basis, or as a lump sum payment or even by way of payment to third parties, such as payment of rent or mortgage payments.

Superannuation Information Form

A prescribed court form used in property / financial matters where there are superannuation interests being considered as part of the property settlement or division. The form is issued to the trustee of the superannuation fund and requires the release of information about the superannuation fund to a party or parties.

Superannuation Splitting Order

An Order of the Court to the Trustee of a Superannuation Fund for the split of a membership superannuation interest as part of property settlement.

Valuation

An expert report providing a professional opinion on the value of an asset such as real property, motor vehicles or business interests

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‘When will this get better?’ you may ask yourself just after a separation. It’s often a time of feeling overwhelmed. Even if things are amicable with your ex, there are many (sometimes contradictory) emotions to deal with, ranging from relief to heartbreak.

There is also the prospect of having to deal with change itself. Finding your routines changed and having ‘what-do-I-do-now?’ questions is very common. When you are separating or getting a divorce, your cognitive abilities and attention span can also take a real hit.

So it helps to know some of the things which have helped many others just like you. It’s a heartening reminder that, bit by bit, you can get through the upheavals you’re experiencing. 

Empower yourself with these practical tips to get you through.

1. Connecting to others

Even if you are a private person, making connections with others is vital. People are by nature social beings—connecting with others will help get you through a tough period.

Reach out and open up to family, friends or colleagues you feel comfortable with and trust. Share what you are going through and how you are feeling. ‘Divorce is awful and just plain heartbreaking. But I must say it has made me see who my true friends are. Despite being shy and private, I let my guard down and discovered some really wonderful people I can talk to and trust.’ said a recently divorced teacher. ‘You never know who will step up and support you in unexpected ways’. Booking time with a good counsellor is also useful. A counsellor will help you untangle the difficulties coursing through your mind and offer you helpful coping strategies. And while face-to-face interactions are ideal, you may also find solace in reading books which touch on what you are going through. Or you can join online forums like Facebook groups for people in your situation who can understand your pain. It makes you realise you are not alone.

Spending time with animals is also soothing. Pets often connect to your emotions and give you their unjudgmental, loving presence.

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2. The body-mind connection

Because there’s so much going on in your mind at the moment, moving your body is great for dispersing your mental energy. You can adapt the level of activity to where you are at right now. Going outside for fresh air and walking or running around the block may help to shift things. If you would like to be among people, an exercise class (perhaps yoga, dancing or an intense gym workout) could be for you. Or join a bush hiking group and enjoy being with others while letting nature soothe you as you walk things off.

A stroll on the beach where you can take in a sunrise or sunsest can also be comforting—and a metaphor for new life opportunities that lay before you.

3. Keeping Records

With so much change happening at once, it’s good to keep a diary or record of important events—such as the date of separation, and when expenses are paid for the children or the property.

You may want to use the notes facility on your phone or tablet or computer, or just use a paper notepad. As well as this, hold on to your receipts and place them in one designated jar. This will save you the stress of fumbling around for crumpled bits of paper later.

4. Reaching agreement

If you have children or property with your former partner, there are many practicalities to consider. These include new living arrangements and where the children will live in the short term and long term.

It’s great if you are able to come to your own arrangements about these matters. But be aware that the agreements you make with your ex work only if you are both willing to abide by them. Any private agreements you reach generally won’t be legally binding if one of you retracts. Having your agreement legally formalised requires a different process and approach.

When parenting or property matters are involved, amica.gov.au is a handy online tool which may help you and your ex reach agreement.

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5. Legal advice

Speculating and not knowing where you stand can be stressful. And well-meaning friends may not necessarily give you correct advice about legalities. So inform yourself about your legal standing on property division and arrangements for children – at least the bare basics for now.

Having the correct knowledge about what may be coming up is empowering. Coming back to connecting to others who can help, you may want to seek out legal representation for the near future. The people you surround yourself with for the challenging time ahead can make all the difference to your experience. Find out about the approach of different lawyers—are they clear, calm and do they empower you with knowledge in a way you understand? Do they set realistic expectations?

Do they have value-added services? What is their fee structure? And importantly, do they feel like they’re the right person to have by your side?

Do you have any questions?

New Way Lawyers, Australia’s first non profit law firm, are family lawyers in Brisbane and the South East Queensland region. We provide a free ‘Lunch with a Lawyer’ Facebook group with live sessions between 12-1pm each weekday. Here you can ask your questions anonymously if you wish. Or contact us to book a free phone consultation.

If you become a client, you will be invited to become part of our complimentary Client Care Program. Our Client Care Program has been designed to provide you with extra support, encouragement and a listening ear with initiatives including extra support when attending Court, weekly uplifting blogs and heartfelt personal messages. We also have a client lounge in each of our offices (Brisbane, Burleigh, Capalaba and Indooroopilly) where you can relax with a cuppa, access referral services such as counselling, browse through our resource library and even keep the book of your choice.

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Disclaimer
The above information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.

Separation, divorce and property settlement can be very difficult and challenging. It is no wonder then, that when faced with these situations, individuals often seek support, counsel and advice from family and friends. While family and friends provide a valuable support network, often their understanding of the family law system is incorrect and misinformed. Although family members and friends who have personally been through their own separation, divorce or property settlement are well intentioned in sharing their own experience and outcome, there is no one size fits all approach; rather, each separation, divorce and property settlement is different. It is therefore beneficial for anyone facing these situations to seek personalised legal advice from an expert family lawyer.

Set our below are some of the most common myths regarding these matters and some practical legal information and pointers.

1. We only need to divide the house

When our family lawyers meet with a client who has separated and is considering property settlement one of the first questions that we ask is what assets and liabilities are owned by each party to the relationship. We often hear clients respond with, “We have nothing, just the house with a mortgage.” Half an hour into the appointment, we typically identify several other assets, in addition to the family home.

In a property settlement, all assets and liabilities, either in sole or joint names are included for division, not just the family home and mortgage. These assets can include, but are not limited to:

• Furniture, jewellery and collectables;
• Cars, caravans, boats and motorbikes;
• Savings in bank accounts or term deposits;
• Shares;
• Life insurance policies; and

On the other hand liabilities can include, but are not limited to:

• Mortgages;
• Car loans;
• Personal loans and lines of credit;
• Credit cards; and
• Tax debts.

2. Each person takes out the same assets and liabilities as they brought into the relationship

When our lawyers first meet with a client they often hear the belief that each person should be placed in the same financial position at the end of the relationship as they were at the start and should therefore take out the same assets and liabilities that they brought into the relationship. This myth is attractive because of its simplicity, however, separation, divorce and property settlement is rarely this simple.

Over the course of a relationship, particularly long relationships, the initial assets that were brought into the relationship may be sold for a profit or loss, with the sale proceeds applied to purchase new assets. Additionally, original debts and loans may have been paid out or paid down or alternatively increased and new debts and loans may have been incurred. In fact, there are many things that can occur during a relationship that may result in a change in the makeup of the original assets and liabilities.

While there is no rule that each person takes out the same assets and liabilities as they brought into the relationship, there is a recognised legal principle that considers the contributions that each party has made to the assets, liabilities and the relationship generally. These contributions include initial contributions, contributions during the relationship and contributions following separation. The contributions may take the form of financial contributions but they can also take the form of non-financial contributions which include contributions in the role of homemaker and parent.

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3. My partner had an affair so they should get less of the property

There are times where separation or divorce occurs because of infidelity. In such situations, the aggrieved partner or spouse often believes that the property settlement is a means for holding their partner to account or punishing them for their behaviour.

Unlike the family law systems in some countries, Australia has a no-fault family law system. This means that moral considerations such as who decided to end the relationship or infidelity are not relevant and will not impact the division of assets and liabilities. The no fault family law system means that your property settlement will not resemble a controversial episode of the Jerry Springer Show with both parties airing their dirty laundry, instead focus is placed on the contributions that the parties have made to the relationship and also the future needs of the parties.

Although it can be difficult for an aggrieved spouse to learn that the property settlement process operates on a no-fault basis, accepting this reality will minimise the time, expense and stress of the process. In general, the most lengthy, expensive and stressful property settlements that we see are those where clients conduct their property settlement driven by emotion rather than logic and typically in these cases neither party to the relationship ever walks away satisfied.

4. Everything is split 50 / 50

Ever since we were children, we have always been told to share and our instincts seem to tell us that the fairest way to share is equally. A very common myth about property settlement is that assets and debts are automatically divided 50/50 following separation or divorce. While this may be the case for some relationships, it does not apply across the board. There is no legal presumption that the Court will equally divide the assets and liabilities of your relationship. Although there have been some interesting recent cases from the Courts regarding property settlement it is still generally accepted that when determining the division of assets and liabilities the following five step approach should be followed:

1. All the assets and liabilities held by the individuals to the relationship are identified and valued;
2. Consideration is given as to whether it is ‘just and equitable’ to make any adjustment to the existing property interests of the individuals
3. The contributions that each individual made to the assets and liabilities and to the relationship are considered. Contributions are defined broadly and include initial contributions, contributions during the relationship and contributions following separation. Contributions may take the form of financial and also non-financial contributions which include contributions in the role of homemaker and parent.

4. The future needs of both individuals to the relationship are then considered, such as the age of the parties, the health of the parties, the income and earning capacity of the parties and care arrangements for any children of the relationship.
5. The outcome is then further considered and if necessary adjusted to ensure that it is fair and just.

After following this approach the entitlement of each party to the assets and liabilities can be ascertained.

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5. We can write an agreement between ourselves to formalise property settlement

Sometimes, couples decide to separate or divorce on mutual terms and remain cordial. While this is easier than the alternative, it does not mean that a property settlement should then become a D-I-Y project. An agreement regarding property settlement must comply with the requirements of the Family Law Act in order to be binding and enforceable. Most often, agreements that are written by the parties themselves do not meet the requirements of the Family Law Act and are not binding, even if they have been signed by both parties and witnessed by a Justice of the Peace.

When an agreement does not meet the requirements of the Family Law Act, and is not binding, the effectiveness of the agreement is based solely on the ongoing good faith of both parties. If one party subsequently decides that they are no longer satisfied with the agreement they can simply ignore the agreement and make an application to the Court for alternative property settlement arrangements. Many people have learned the hard way that the agreement that they reached with their former partner or spouse was not worth the paper it was written on. It can be particularly stressful for someone to learn that an agreement is not binding and that their partner or spouse may have a claim on assets attained post separation, for example, an inheritance from a family member, a redundancy payout or a personal injury claim.

The Family Law Act provides two pathways for separated or divorced parties who have agreed about property settlement to formalise their agreement. The first option is Consent Orders, which involves the parties making an application to the Court to have their agreement made into a court order. This process is done administratively by submitting paperwork to the Court and no one is required to go to Court. The second option is a Binding Financial Agreement, which is essentially a private contract between the parties.

6. We can just transfer the property title between ourselves to resolve property settlement

There is nothing to prevent parties who have separated or divorced from transferring the names on the title deed of a property between themselves following the breakdown of the relationship. However, the mere act of transferring the title of the property between themselves does not meet the requirements of the Family Law Act and therefore does not constitute a binding and enforceable property settlement arrangement. If an agreement is not recognised under the Family Law Act then the agreement is based solely on the goodwill of both parties and at any time either party can ignore the agreement and make an application to the Court for alternative property settlement arrangements.

There are also further reasons why parties to a relationship shouldn’t simply transfer the property title between themselves by way of property settlement. Individuals who transfer property title between themselves will be faced with having to pay stamp duty on the transfer of the property. However, if the parties enter into a recognised property settlement arrangement under the Family Law Act, the transfer of the property would then be subject to a stamp duty exemption and no stamp duty would be payable. The cost of having a family lawyer prepare a property settlement arrangement by way of consent orders or a binding financial agreement is almost always much less than paying the stamp duty on the transfer of title of a property.

7. I need to be separated for 12 months before I can do a property settlement

A lot of people think that they have to wait until they have been separated for 12 months before they can take any steps toward property settlement. This is incorrect – there is no waiting period that must run before starting the property settlement process. Property settlement can in fact be started as soon as separation occurs.

There are however some deadlines to be aware of for the completion of property settlement. For individuals who were in a de facto relationship the deadline for completing property settlement is two years from the date of separation. For couples who were married the deadline is twelve months from the date of divorce. If property settlement has not been finalized by these deadlines it may be necessary to make an application to the Court for property settlement. It is critical that this deadline is not missed as although permission may be granted by the Court for an application to be made out of time there is no guarantee that permission will be granted and the costs associated with making an application out of time are much higher than making an application within the required time frame.

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Disclaimer
The above information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.

Wills are like most other legal documents, people have a general idea of what they are about but they may feel daunted by the details and do not fully understand who should make a Will, when one should be made and what should be included. In our 8-part series, we hope to shed light on commonly unknown issues relating to Wills.

1. More than 50% of adult Australians do not have a valid Will

According to research by the Western Australian Public Trustee, more than half of Australians either do not have a Will or do not have a Will which is effective on death. If you pass away without a Will, the law in the state where you live will determine who is responsible for distributing assets you own and who will receive these assets. This means that you will have had no control over who is in charge of distributing your assets and your assets may not be received by the people that you would have chosen.

Even if you have a Will, your Will may be invalid if it has not been properly completed. A Will may be invalid due to common mistakes such as not having a proper witness or deeper issues such as someone having undue influence on the content. We encourage everyone to document their wishes in a valid Will.

2. You can and probably should update your Will

People often think that making a Will is something that you only need to do once. This is a common, but serious misconception about Wills. Many life events can have a significant impact on your Will. These include:

• Marriage;
• Divorce;
• Entering into a de facto relationship;
• Having a child, stepchild or grandchild;
• Family members passing away;
• Change in financial circumstances;
• Moving interstate or overseas.

By way of example, when a person marries, any existing Will that that they have in place is automatically revoked, unless the Will has been made in contemplation of marriage.

In the case of a person divorcing, certain parts of an existing Will are revoked by the divorce. Any clauses in a Will that provide a gift or beneficial interest to a former spouse are revoked by divorce as are any clauses appointing a former spouse as an executor, trustee or guardian.

It is advisable to review your Will every 2-3 years, or whenever you experience any of the above mentioned life events to ensure that it still reflects your intentions. We are able to help you if you have an existing Will which needs to be updated.

3. Wills are not only for rich people

Many people think that they do not need to make a Will if they don’t own any property or don’t have much money. However, Queensland law requires that all deceased estates must be properly administered, no matter how large or small the estate.

Common items that people do not realise form part of their estate include:

• Sentimental possessions such as jewellery, artwork and photos; and
• Unpaid wages and leave entitlements.

In addition to setting out who receives your assets your Will can also:

• Designate guardians to take care of any of your children who are under the age of eighteen;
• Detail arrangements for family pets;
• Set out arrangements for what you would like to happen with social network profiles such as Facebook, Myspace, LinkedIn and Twitter;
• Provide details of wishes for your funeral or cremation; and
• Confirm your wishes regarding organ donation.

It is advisable for everyone to have a Will in place, regardless of their financial circumstances.

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4. Your Will doesn’t cover all your assets

Many people believe that if they have a Will, it covers all their assets. However, some assets aren’t automatically covered by your Will; superannuation is one of these assets. Your superannuation is held by the trustee of your superannuation fund and there are special rules that govern how a trustee can distribute your superannuation after you die.

Your superannuation fund may permit you to make what is called a binding death nomination, which allows you to determine who will receive your superannuation after you die. In a binding death nomination you can nominate for your superannuation to be paid to your estate, in which case your superannuation will then be distributed in accordance with the terms of your Will. Alternatively, you can make a binding death nomination nominating a spouse, child or other dependant to be the beneficiary of your superannuation, in which case your superannuation will simply be paid directly to the nominated beneficiary. If your superannuation fund does not allow you to make a binding death nomination or you choose not to make a binding death nomination, then the trustee will decide whether to pay your superannuation to your estate, to then be dealt with by your Will, or whether to pay your superannuation directly to a spouse, child or dependant.

When making or reviewing a Will it is therefore important to also make or review any nominations that you may have made with respect to your superannuation.

5. You can nominate an alternate or back up executor

An executor is the person who you appoint to be responsible for carrying out the wishes in your Will. When choosing an executor, it is a good idea to also name an alternate or back up executor in case your first executor is unable to act as your executor or does not want to become an executor.

When choosing who you want to have act as your executor or alternate executor you should consider the following:

• Do you trust them?
• Are they confident and prepared to deal with your assets in accordance with your wishes?
• Do they have time to do what is needed?
• Will they make sound decisions if disputes arise over your estate?
• Are they likely to outlive you?

Keeping in mind the above, you can choose anyone who is over the age of 18 years to become your executor, including your spouse, partner or children. An executor of your Will can also be a beneficiary under your Will.

It’s also possible to appoint two people to act as joint executors. If you are having difficulty choosing an executor, or you want someone independent, you can appoint a solicitor, accountant or a person from a trustee company.

6. Your home may not automatically go to the co-owner

If you own a home it may be owned as joint tenants or tenants in common. It is important to understand the difference between these two forms of ownership, as the form of ownership will have an impact on your estate planning.

If you own the family home jointly with another person as joint tenants, the property will automatically go to the co-owner upon your death, rather than forming part of your estate and being dealt with by your Will. Owning a property as joint tenants can be useful if you believe that there is a risk that someone may apply to the Court and contest your Will and seek further provision from your estate upon your death. Owning a property as joint tenants effectively guarantees that the property will go to the co-owner if they survive you and protects the property from falling into your estate and being subject to any claim that may be made.

If however you own the family home jointly with another person as tenants in common, your share of the property will not automatically go to the co-owner on your death, rather, it will form part of your estate and will be distributed in accordance with your Will. Similarly, on the death of the co-owner, you will not automatically receive their share of the property, it will be dealt with by their Will, or the rules of intestacy if they don’t have a Will, and you may end up owning the property with someone you did not initially intend to own the property with.

It is easy to find out whether a property is owned as a joint tenancy or tenants in common. This can be determined by reviewing the title deed for the property or alternatively by completing a title search.

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7. A Will can include arrangements for the care of children

It can be overwhelming to think about who would care for your children if you were to pass away. However, by making a Will you can appoint a person to be the testamentary guardian of your children and therefore have peace of mind in this regard.

A testamentary guardian is responsible for making decisions about the long term care, welfare and development of your children, as well as having daily responsibility for your children’s care. If the other natural parent of your children has also passed away then the appointed guardian will be in the same position as a parent and if someone disagrees with the appointment, they must apply through a court process to challenge the appointment. In the event that the other natural parent of your children is still alive then you may still appoint a guardian however the other natural parent may apply to have the guardian you have appointed removed if they do not agree with the appointment.

If you do not appoint a guardian under your Will then your family members will be left to decide who will care for your children. If agreement cannot be reached it may become necessary for an application to be made to the Court and the Court will decide who will care for your children.

It is important to consider a number of matters when appointing a Testamentary Guardian. Some matters to be considered include the following:

• (a) The relationship between your children and the proposed Testamentary Guardian;
• (b) The relationship between your chosen executors of your Will and the proposed Testamentary Guardian;
• (c) The proposed Testamentary Guardian’s location. If the Testamentary Guardian is required to relocate to look after your children you may wish to consider how that might impact on the Testamentary Guardian’s income and lifestyle;
• (d) The proposed Testamentary Guardian’s age and fitness to act; and
• (e) The financial implications for the proposed Testamentary Guardian.

8. Your Will can be contested in certain circumstances

In certain circumstances if you have excluded someone from your Will or not made sufficient provision for someone in your Will, your Will may be able to be contested by way of a family provision application.

In Queensland a family provision application can only be made a spouse, child or dependent. The terms spouse, child and dependant are defined by the law and defined quite broadly. For example, the term spouse includes a husband, wife, defacto partner, registered partner, former husband, former wife and former registered partner while the term child includes a biological child, unborn child, legally adopted child and step child.

A Court can take various matters into consideration in determining whether the terms of a Will should be varied so that provision is made for a person making a family provision application.

These considerations include, but are not limited to

1. The financial position of the person contesting the Will;
2. Whether any other person is liable to support the person contesting the Will;
3. The health of the person contesting the Will;
4. The size and nature of your estate;
5. The strength of any competing claims to your estate;
6. The relationship between you and the person contesting the Will;
7. Any contribution made by the person contesting the Will to your estate;
8. Any conduct by the person contesting the Will which might disentitle them to an order for provision; and
9. Any other matter which the court considers relevant.

There are various ways to minimise the risk of someone contesting your Will by making a family provision application and it is best if you obtain legal advice if you are considering excluding a spouse, child or dependent from your Will.

This information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.

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We have now reached the end of our 8 part series on making your Will. In the final part of our series we consider the circumstances when your Will may be able to be contested by way of a family provision application.

Your Will can be contested in certain circumstances

In certain circumstances if you have excluded someone from your Will or not made sufficient provision for someone in your Will, your Will may be able to be contested by way of a family provision application.

In Queensland a family provision application can only be made a spouse, child or dependent. The terms spouse, child and dependant are defined by the law and defined quite broadly. For example, the term spouse includes a husband, wife, defacto partner, registered partner, former husband, former wife and former registered partner while the term child includes a biological child, unborn child, legally adopted child and step child.

A Court can take various matters into consideration in determining whether the terms of a Will should be varied so that provision is made for a person making a family provision application.

These considerations include, but are not limited to

1. The financial position of the person contesting the Will;
2. Whether any other person is liable to support the person contesting the Will;
3. The  health of the person contesting the Will;
4. The size and nature of your estate;
5. The strength of any competing claims to your estate;
6. The relationship between you and the person contesting the Will;
7. Any contribution made by the person contesting the Will to your estate;
8. Any conduct by the person contesting the Will which might disentitle them to an order for provision; and
9. Any other matter which the court considers relevant.

There are various ways to minimise the risk of someone contesting your Will by making a family provision application and it is best if you obtain legal advice if you are considering excluding a spouse, child or dependent from your Will.

We hope that our 8 part series has helped you gain a better understanding of the matters you should consider when making your Will.

This information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.

We are almost at the end of our series focusing on things you should know about Wills.

A Will can include arrangements for the care of children

It can be overwhelming to think about who would care for your children if you were to pass away. However, by making a Will you can appoint a person to be the testamentary guardian of your children and therefore have peace of mind in this regard.

A testamentary guardian is responsible for making decisions about the long term care, welfare and development of your children, as well as having daily responsibility for your children’s care.If the other natural parent of your children has also passed away then the appointed guardian will be in the same position as a parent and if someone disagrees with the appointment, they must apply through a court process to challenge the appointment. In the event that the other natural parent of your children is still alive then you may still appoint a guardian however the other natural parent may apply to have the guardian you have appointed removed if they do not agree with the appointment.

If you do not appoint a guardian under your Will then your family members will be left to decide who will care for your children. If agreement cannot be reached it may become necessary for an application to be made to the Court and the Court will decide who will care for your children.

It is important to consider a number of matters when appointing a Testamentary Guardian. Some matters to be considered include the following:

• (a) The relationship between your children and the proposed Testamentary Guardian;
• (b) The relationship between your chosen executors of your Will and the proposed Testamentary Guardian;
• (c) The proposed Testamentary Guardian’s location. If the Testamentary Guardian is required to relocate to look after your children you may wish to consider how that might impact on the Testamentary Guardian’s income and lifestyle;
• (d) The proposed Testamentary Guardian’s age and fitness to act; and
• (e) The financial implications for the proposed Testamentary Guardian.

This information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.

Continuing on with our 8 part series focusing on things you should know about Wills, we now reach part 6 of the series.

Your home may not automatically go to the co-owner

If you own a home it may be owned as joint tenants or tenants in common. It is important to understand the difference between these two forms of ownership, as the form of ownership will have an impact on your estate planning.

If you own the family home jointly with another person as joint tenants, the property will automatically go to the co-owner upon your death, rather than forming part of your estate and being dealt with by your Will. Owning a property as joint tenants can be useful if you believe that there is a risk that someone may apply to the Court and contest your Will and seek further provision from your estate upon your death. Owning a property as joint tenants effectively guarantees that the property will go to the co-owner if they survive you and protects the property from falling into your estate and being subject to any claim that may be made.

If however you own the family home jointly with another person as tenants in common, your share of the property will not automatically go to the co-owner on your death, rather, it will form part of your estate and will be distributed in accordance with your Will. Similarly, on the death of the co-owner, you will not automatically receive their share of the property, it will be dealt with by their Will, or the rules of intestacy if they don’t have a Will, and you may end up owning the property with someone you did not initially intend to own the property with.

It is easy to find out whether a property is owned as a joint tenancy or tenants in common. This can be determined by reviewing the title deed for the property or alternatively by completing a title search.

This information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.

This month’s article marks the halfway point of our 8 part series focusing on things to know when making a Will.

Your Will doesn’t cover all your assets

Many people believe that if they have a Will, it covers all their assets. However, some assets aren’t automatically covered by your Will; superannuation is one of these assets. Your superannuation is held by the trustee of your superannuation fund and there are special rules that govern how a trustee can distribute your superannuation after you die.

Your superannuation fund may permit you to make what is called a binding death nomination, which allows you to determine who will receive your superannuation after you die. In a binding death nomination you can nominate for your superannuation to be paid to your estate, in which case your superannuation will then be distributed in accordance with the terms of your Will. Alternatively, you can make a binding death nomination nominating a spouse, child or other dependant to be the beneficiary of your superannuation, in which case your superannuation will simply be paid directly to the nominated beneficiary. If your superannuation fund does not allow you to make a binding death nomination or you choose not to make a binding death nomination, then the trustee will decide whether to pay your superannuation to your estate, to then be dealt with by your Will, or whether to pay your superannuation directly to a spouse, child or dependant.

When making or reviewing a Will it is therefore important to also make or review any nominations that you may have made with respect to your superannuation.

This information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.

Continuing on with our 8 part series focusing on things you should know about Wills, we now reach part 3 of the series.

Wills are not only for rich people

Many people think that they do not need to make a Will if they don’t own any property or don’t have much money. However, Queensland law requires that all deceased estates must be properly administered, no matter how large or small the estate.

Common items that people do not realise form part of their estate include:

• Sentimental possessions such as jewellery, artwork and photos; and
• Unpaid wages and leave entitlements.

In addition to setting out who receives your assets your Will can also:

• Designate guardians to take care of any of your children who are under the age of eighteen;
• Detail arrangements for family pets;
• Set out arrangements for what you would like to happen with social network profiles such as Facebook, Myspace, LinkedIn and Twitter;
• Provide details of wishes for your funeral or cremation; and
• Confirm your wishes regarding organ donation.

It is advisable for everyone to have a Will in place, regardless of their financial circumstances.

This information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.

Last month we began an 8 part series focusing on things you should know about Wills. This month we continue with part 2 of the series.

You can and probably should update your Will

People often think that making a Will is something that you only need to do once. This is a common, but serious misconception about Wills.Many life events can have a significant impact on your Will. These include:

• Marriage;
• Divorce;
• Entering into a de facto relationship;
• Having a child, stepchild or grandchild;
• Family members passing away;
• Change in financial circumstances;
• Moving interstate or overseas.

By way of example, when a person marries, any existing Will that that they have in place is automatically revoked, unless the Will has been made in contemplation of marriage.

In the case of a person divorcing, certain parts of an existing Will are revoked by the divorce.Any clauses in a Will that provide a gift or beneficial interest to a former spouse are revoked by divorce as are any clauses appointing a former spouse as an executor, trustee or guardian.

It is advisable to review your Will every 2-3 years, or whenever you experience any of the above mentioned life events to ensure that it still reflects your intentions. We are able to help you if you have an existing Will which needs to be updated.

This information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.

Wills are like most other legal documents, people have a general idea of what they are about but they may feel daunted by the details and do not fully understand who should make a Will, when one should be made and what should be included. In our 8-part series, we hope to shed light on commonly unknown issues relating to Wills.

More than 50% of adult Australians do not have a valid Will

According to research by the Western Australian Public Trustee, more than half of Australians either do not have a Will or do not have a Will which is effective on death. If you pass away without a Will, the law in the state where you live will determine who is responsible for distributing assets you own and who will receive these assets. This means that you will have had no control over who is in charge of distributing your assets and your assets may not be received by the people that you would have chosen.

Even if you have a Will, your Will may be invalid if it has not been properly completed.  A Will may be invalid due to common mistakes such as not having a proper witness or deeper issues such as someone having undue influence on the content. We encourage everyone to document their wishes in a valid Will.

This information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.