HOME PROFILE HISTORY SERVICES PEOPLE NEWS CONTACT TESTAMENTARY TRUSTS This follows on from an article about superannuation and Wills. It is designed to be read in conjunction with that article where the Testator (Will maker) wants to limit the ability of beneficiaries to access the estate assets but it’s equally relevant if the estate assets do not include superannuation benefits. The normal method of limiting the ability of beneficiaries to access assets is by creating a life interest, a protective trust or a testamentary trust. Read More   WHAT HAPPENS TO MY WILL IF I DIVORCE Section 14 of the Wills Act provides that divorce -    revokes any gift to the spouse made by a Will current at the time of the divorce and any appointment of the spouse as Executor and Trustee (except as Trustee for Beneficiaries which include the spouses children). Read More   SUPERANNUATION AND WILLS For many people their superannuation is a major asset. Very probably they would expect that on their death, the capital of the Superannuation Fund would pass according to their Wills. But this is not necessarily so. Superannuation funds are held by Trustees. Read More   CONTROL OF A TRUSTEE An example of what may happen if control of a Trustee is lost is the 2005 New South Wales case of Katz v. Grossman. In that case husband and wife were members and Trustees of a superannuation fund. They had a daughter and a son. The wife died and her benefit was paid to the husband. The husband appointed the daughter Linda as an additional Trustee. Read More   TERMS CONTRACTS OF SALE What is a terms Contract of Sale? A Terms Contract of Sale is one where the purchaser pays a deposit then pays the balance of purchase money (usually with interest) over an extended period. The title is not normally transferred until the whole of the purchase money has been paid. Read More   WHAT HAPPENS IF I LOSE MY MARBLES? What constitutes “Losing my Marbles”? This is an expression meaning that a person is disabled to the extent that he or she cannot deal with his or her affairs in an informed and reasonable way. Legislatively, the Instruments Act refers to “legal incapacity” as not revoking an Enduring Power of Attorney, the Guardianship and Administration Act refers to granting administration for “a person with a disability who is unable to make reasonable judgments in respect of matters relating to his Estate, and the Wills Act refers to Wills made by the Court for a person who does not have “testamentary capacity”. All the expressions contemplate a person who is unable to manage his or her affairs. The Instruments Act, in Section 118, sets out criteria for establishing capacity to make an Enduring Power of Attorney. Read More   RETAIL LEASES What legislation governs Retail Leases? The Retail Leases Act 2003 (“Act”) is the principal act. It applies to all Retail Leases entered into or renewed on or after 1st May 2003. Prior legislation may govern pre-May 2003 Retail Premises Leases. Read More   LIABILITY FOR WATER FLOWS Water which flows from one property onto another may cause damage. The Water Act covers three situations where damage is caused. Read More   IMPLIED TERMS IN CONTRACTS The terms of a contract are the specific agreed terms and any implied terms.  Implied terms serve at least two purposes. First they fill gaps–no contracts can allow for all eventualities.  Second, implied terms allow regulation of the performance and enforcement of contracts.   But implied terms will always be overruled by specific contrary terms.   There are at least three different kinds of implied terms.   Read More   PROBATE – THE WHYS AND WHEREFORES. What is Probate? "Probate" is the official recognition of the validity of a Will. Probate is granted by the Supreme Court to an executor named in a Will and provides conclusive evidence of the Executor's appointment and the terms of the Will. The Supreme Court (usually through its Officer, the Registrar of Probates) issues a certificate under the courts seal certifying that on a particular date Probate of the original of the attached copy Will of the named person who died on a specified date was granted to a named person. The certificate is the Probate document. Read More   SOME LESSER KNOWN ASPECTS OF POWERS OF ATTORNEY Various documents, for instance mortgages and leases, commonly contain a provision where the borrower/tenant appoints the lender/landlord his Attorney. Read More   COMMON LEASE PROBLEMS Leases are complex documents. They often deal with complex situations and/or complex relationships. This article explores some common problems and suggests strategies to overcome them.  At the outset the author acknowledges that this article owes much to Michael Redfern of Russell Kennedy Lawyers. Read More   GUARANTEES What is a guarantee? A guarantee is a contract where the promisee undertakes to be liable for the debt or obligation of another. A guarantee is a collateral contract – there must first be a primary contract where the debt or the obligation being guaranteed exists or is contemplated. Read More   INVESTMENT BY TRUSTEE This is an update of an article we published a number of years ago.  It is now, in the light of falling investment values, particularly relevant to trustees. Read More   BUYING OFF THE PLAN What is an "Off the Plan Purchase"?   It is the purchase of an apartment which has not been constructed or has only been partly constructed and in either case is defined by reference to a Plan (which is an unregistered Plan of Subdivision). The Plan shows the dimensions and the layout and the situation of the Apartment.  It may also show the development in cross section. Read More   PARTNERSHIP What is a partnership? A partnership is defined in the Partnership Act 1958 “the Act” as “the relation which subsists between persons carrying on a business in common with a view to profit..”. Read More   PENALTY UNITS Acts which provide for penalties specify the penalties by way of penalty units rather than dollar amounts. Read More