What To Consider When Making Specific Gifts in Your Will

What to consider when making specific gifts in your Will

When preparing your Will there are a number of things to consider such as who to appoint as your Executor, the beneficiaries of your estate and whether you wish to leave any specific gifts to a particular family member or friend.

A ‘gift’ can be anything from a particular item of jewellery to a sum of money.  Below it will be discussed the matters that should be considered if you want to leave a gift under your Will.

Firstly, you cannot gift an item if you do not own them.  This situation can arise where a property is held under a Self-Managed Superannuation Fund or under a Trust.  Another situation to mention is when an item is owned jointly with another person.  In this case, the surviving owner will obtain the asset upon your passing.  Consequently, if you gift an item that you do not own, or is jointly owned, will be ineffective under your Will.

Secondly, it is important to update your Will to ensure that if the asset you have gifted still exists when you pass away.  We understand that life happens and that items and assets are sold or given away during your lifetime.  Therefore it is important to update your Will if you know that you no longer hold an asset.  However, if you have made a gift that is no longer in your possession, the direction in your Will would be ineffective and result in the recipient not receiving the gift.

Finally, if you wish to gift a particular asset or item under your Will, it is important to consider these items are properly described.  It is recommended to provide adequate detail when describing your asset to ensure your wishes are consistent as under your Will.

If you wish to discuss your Will, please do not hesitate to contact our friendly Canny Legal team.

 

Kayla Kennedy

Law Clerk

 

 

 

PPSR – Personal Property Securities Register

Hidden interests…buyers beware!

Persons who obtain finance, more commonly commercial, car or personal finance, a security interest is generally registered on the Personal Property Securities Register known as the PPSR.  In doing so, they are securing their interests on the borrower’s personal property, such as cars, boats, plant and equipment, but does not include land, certain licences and a few other exceptions.  While registration of a security interest is not compulsory, a financier (secured party) may lose its priority to the personal property if it is in competition with other security interests.

If you are looking to purchase business, plant, equipment, car, boat, trailer or the like, a search of the person and/or company in ownership of the property is a must as part of your due diligence.  At settlement and transfer of the property you have a right to clear and free possession of that property from the seller.  If the personal property is under finance and the PPSR charge is not released when the property is transferred to you, the financier has a right, in the first instance, to repossess the property should the seller default on their loan arrangement.  It is important that any security interests are discharge prior to the property being transferred to you.

The PPSR is a single national register for personal property security interests and an online noticeboard of the particulars of a security interest for a particular individual or company.

Follow the link below to find out more information about the PPSR: https://www.ppsr.gov.au/ppsr-overview

If you wish to discuss your own secured property or that of a sellers please contact our legal team on 03 5278 95000 or email legal@cannygroup.com.au

 

Katherine Taylor – Law Clerk

BCriminology (History)

Casual Conversion Rights

Often our business clients want advice on putting into place employment arrangements that are flexible in the form of casual employment arrangements that may also suit employees.

At times the business may want confidence in the employee’s performance before considering a full time contract or the business may be approached by a casual employee who seeks to be converted to full time employment after working regular hours.

In September 2018 the Fair Work Commission (FWC) turned its attention to the question of “Casual Conversion” and the employer’s obligation to convert a causal employee working regular hours to full time or part time permanent employment.  From 1 October 2018 the FWC varied many awards to include this right.  Subject to certain prerequisites in many circumstances (that is 84 Modern Awards in addition some 28 Modern Awards that already contain the right) an employee has a right to request casual conversion to permanent employment.

The rights is subject to the casual employee working a pattern of hours over the previous 12 months that they could continue to perform on a full time or part time basis under the provision of the applicable award.

Subject to the formalities such as the request being in writing the employer may refuse only on reasonable grounds such as: the employee is not working regular hours; it is known or reasonably foreseeable the employee’s position will end; it is known that the employee’s hours will significantly reduce in the next 12 months.  Any such ground must be provided to the employee in writing in 21 days of the request being made.  If the employee disputes the alleged facts or claimed reasonable bases, the dispute will be heard at FWC.

Accordingly business are not required to offer employees under relevant Modern Awards permanent employment and the casual employee’s right depends on the facts determining regular employment over the preceding 12 months.  If casual employees prefer flexibility and 25% higher pay they will not exercise this right.

If you would like more information, or to find our how we can help – please get in touch with our team.

 

Richard Pinkstone – Principal Solicitor

BA, LLB

New Year Resolutions that Will Make A Real Difference To You + Loved Ones

Now that the dust has settled on what was hopefully a fun-and-family-filled Christmas and New Year period, it is a great time to reflect on those hastily-made New Year’s resolutions, and consider the difference it will make if you actually see them through.

Perhaps you resolved that in 2019 you will exercise more, quit smoking, drink less, or spend less time looking at your phone.

For others, you may have decided that 2019 is the year you get your personal, financial or business affairs in order. That may include getting those Wills and Powers of Attorney prepared (which you’ve been meaning to do for years), getting that accounting or financial advice you know will make a difference, or kick-starting that business which you’ve been daydreaming about.

Now these are New Year’s resolutions that will make a real difference to you, your loved-ones, your financial health and your current/future employees.

The most important part is getting the process started. The second-most important part is making sure that each of the elements of your plan complement, and do not contradict each other. For example, the superannuation or asset planning which you undertake with an accountant or financial advisor should be reflected in your will, your business plan should be supported by adequate funding arrangements and succession agreements, and your business tax planning and compliance must be complemented by appropriate employment agreements for your staff.

Ideally, this means you should be seeing a lawyer, accountant and financial adviser contemporaneously, and have them talk to each other to ensure each element is consistent. But who has the time and energy for that?

This is where Canny Group can help you stick to your New Year’s resolutions. We have a team of experienced accountants, lawyers and financial advisers under one roof who are ready to listen, identify your needs or the needs of your business, and work cohesively to get your affairs in order, or your dream off the ground, for the best possible start to 2019.

 

Stefan Manche

Senior Associate Solicitor – LLB, BComm (Finance) 

Estate Planning for Blended Families

The term ‘blended family’ generally describes a family where either one, or both, parties to the current relationship have a child or children from a previous relationship, and may also have children together in the current relationship.

As you can imagine, estate planning can be a challenging task, both for the client and the advisor.  When thinking about your future and providing for your family after you have passed away, the role of your solicitor is to understand your wishes and assist in ensuring that you provide adequately for your spouse, the children of your current and previous relationships and any other dependents.  A key focus is often structuring your estate plan to avoid potential claims against your estate or other issues, and balancing this with your wishes.  It will often also encapsulate elements of tax planning to ensure that the benefit received by your family is not diminished with unnecessary tax or other duties or liabilities.

Depending on your individual circumstances and wishes, your solicitor may suggest the use of one or more of the following strategies as part of your blended family estate plan:

  1. BINDING FINANCIAL AGREEMENT

A binding financial agreement is an agreement between you and your current spouse detailing how each other’s assets are to be divided between the family in the event that the relationship ends.  The agreement may include different outcomes depending on the length of the relationship.  If proper formalities are met (such as each party receiving independent legal advice as to the impact of the agreement on them personally) then the agreement will be legally binding.  The terms of any such agreement should then be mirrored in the wills of each party.

  1. WILL CONTENT

Your will is central to your estate plan, and there are a number of mechanisms which can be included in your will to ensure that your spouse, children from your current relationship and children from a previous relationship are all adequately provided for.  Some of the more common mechanisms are the creation of a testamentary discretionary trust within the will, or a portable life interest or right to reside in a particular property.  These are strategies which provide a benefit to a person or multiple persons in the estate assets (usually the spouse), without actually transferring control or ownership of the asset to them, so that upon a designated time or event, that benefit will end and the control or ownership then passes to another party (usually children from a previous relationship).

  1. MUTUAL WILL AGREEMENT

Less restrictive then creating a trust or life interest, a Mutual Will Agreement is an agreement signed at the same time a couple makes their wills, with purpose of the agreement is to impose obligations on the surviving spouse to not change their will, even if they subsequently re-partner.  This generally ensures that all children of the parties (from the current and previous relationships) are provided for in the manner that the parties agreed, and can be enforced by the children should the surviving spouse change their Will to the detriment of the children.

  1. USE OF EXISTING STRUCTURES AND ASSETS

If may also be possible to use existing structures (such as a Family Trust or Self-managed Superannuation Fund holding valuable assets) to provide a benefit to particular parties outside of the Will, by transferring control of those entities either during your lifetime, or upon your death.  Another option may be to transfer assets to a particular person during your lifetime, or to change the ownership of the asset (such as a property) such that it will transfer to the intended beneficiary automatically upon your death (ie. by survivorship).  The benefit of such planning is that assets held in trust structures, held jointly or gifted by you during your lifetime will generally fall outside of those which can be claimed against by challenging your will.  However, there will also be potential control, stamp duty and tax consequences to be considered and therefore individual advice is required to ensure the best outcome for your situation.

The best outcomes for blended families are obtained when your family circumstances and individual wishes are considered carefully and holistically, to allow the most suitable combination of the above tools, structures and planning to be implemented.

If you wish to discuss your family estate planning please do not hesitate to contact our friendly Canny Legal team.

 

Kayla Kennedy

Law Clerk

Debt Recoveries

The world of business dealings is underpinned by trust and reliance on promises to supply goods or services often with the consideration such as payment of money, a debt being due sometime in the future.  Once a contract is legally enforceable, the Court will, if the contract is breached, allow the injured party to seek recovery in the Courts.

Canny Legal regularly act in “debt recovery” proceedings.  Some claims may be very simple such as a failure or refusal to pay monies on account.  However in the cut and thrust of business dealings, contracting parties may have complex arrangements to reach out to potential customers and rely on more complex trading terms.

Suppliers may offer their customers credit terms reflecting their trade requirements.  For example a plumber may have a business which has many projects under way and needs plumbing supplies to compete works before it gets paid from expected future profit.  The supplying company may agree to trade on credit with interest which should also be secured by a personal guarantee and a charge over the director’s property. In this scenario we often find our client’s customers may “bite off more than they can chew” and default in their accounts resulting in debt recovery proceedings.

On the other side of the fence we also act for defendants against claims for monies due and owing and we will explore any genuine defences available to defeat the claim or reduce it by way of set-off.

Debt recovery requires the careful weigh-up of a return for recovery on a debt as against time, legal costs and the uncertainties of litigation.  There will be a range of facts to consider before being able to assess and legally advice on the merits of each claim or each defence.

If you would like more information, we are always here to help.  Please get in touch with our team.

 

Richard Pinkstone – Principal Solicitor

BA, LLB

Early Release of Deposit

When selling a property you are entitled to have your deposit released to you prior to settlement under Section 27 of the Sale of Land Act (VIC). It involves the preparation of a Section 27 Statement. This Statement provides the purchaser with details of any mortgage over the property and of any caveats lodged against the property. If there is a mortgage we are required to obtain written details of the amount due under the mortgage from your bank and attach this to the statement. This information can be requested when completing your discharge of mortgage.

The completed section 27 statement is provided to the purchaser’s representative. The purchaser may sign or object to the statement. If the purchaser does not sign or object within 28 days of their representative receiving the document, the deposit may be released to you without their approval. A purchaser may object to the statement if the information contained in the statement is incorrect or if the purchase price is not sufficient to discharge the mortgage.

It is worth keeping in mind that when deposit is released to you your real estate agent is able to take their commission and advertising costs from the deposit.  If you would like more information, we are always here to help.  Please get in touch with our team.

 

Katherine Taylor – Law Clerk

BCriminology (History)

What happens if I die without a Will?

What happens if I die without a Will?

This is one of the most common questions we are asked when preparing Wills. This is usually followed by the question, “is it true that the Government gets my money if I die without a Will?” The short answer to this is NO, however, the Crown (Government) will receive assets of the Estate IF a person dies without leaving a surviving spouse, partner, child, grandchild, sibling, parent or cousin. This means that if you would like a friend or charity to benefit from your assets, they will miss out.

When a person dies without leaving a Will (or a valid Will which deals with the entirety of their Estate) then they are said to have died Intestate. The Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 governs how a deceased’s assets are distributed should they die Intestate. This results in the deceased and their loved ones having no control as to who benefits from the Estate and in what proportions, who administers the Estate and tax and stamp duty benefits that can flow on from a distribution under a valid Will are lost.

Should you require further information, we are always here to help. Please get in touch with our team.