FAQ

Everything you want to know about the law but were afraid to ask.

The information contained is for reference only. It does not constitute legal advice and no reliance
should be placed on this information without proper legal advice.

Estate Planning

Letter of Administration
  • If there is no will, the family of the deceased can still apply for a Letter of Administration to allow a designated person to deal with the inheritance.
Probate
  • Probate is an application to the Supreme Court NSW for grant to give the executor the power to deal with the deceased estate. For example, selling any property the person owned and distribute the proceeds to the beneficiaries.

Family Provision
  • If a person believes that they are entitled to part of the estate of the deceased, they can make Family Provisions application to the Court to be granted a share of the estate.
Discretionary Family Trust
  • A Discretionary Family Trust is a trust established for asset protection or tax minimisation. The Trust can be structured in such a way that the income and asset distribution of the trust are at the discretion of the trustees.
Will
  • A Will is a legal document specifying who the will maker appoints as executor and how they want their property disposed.

  • Without a valid will, their property will be held by the New South Wales.

  • A deceased person without a will dies intestate, meaning that there is no testimony.

  • Executing a will is a simple matter which gives certainty to the distribution of person after the person passes away.

  • The will can always be updated and the last will the person makes before their demise if the valid will.

Property

Conveyancing
  • Conveyancing is transfer of title of a property from the Vendor to the Purchaser. Titles can also be transferred because of property settlement between spouses.

  • Most conveyancing transactions are now conducted via an electronic platform called PEXA.

Breach of Statutory Warranty
  • Each Contract for Sale of Land contains warranties by the Vendors which protects the Purchasers. Breach of these warranties will allow the Purchaser to rescind the Contract and get back any deposit they have paid.

Criminal Defence

Assult
  • Assault is a criminal, intentional act that causes another person to fear for their safety. The elements of the offence include an overt threatening act combined with the ability to carry out threat. Although verbal threat may bot be sufficient to constitute the offence, a raised fist may cause a reasonable apprehension of harm.

  • If the act is carried out in a domestic setting, then it is considered a Domestic Violence related offence.

  • When police attend to a domestic dispute in progress, they usually arrest the person threatening violence and issue a provisional Apprehended Violence Order.

Apprehended Violence Order
  • An AVO can be issued by the police or by the court. An AVO restricts the person under the AVO from intimidating, harassing or even being in the same vicinity of the PINOP (person in need of protection). The terms of the AVO can be contested and varied in a court of law.
Drink Driving
  • Courts now view drink driving as a serious offence because it endangers other road users and may cause death and injury. The seriousness of the offence depends on the Blood Alcohol Concentration (BAC) at the time of the arrest. Adult drivers have a limit of under 0.05 Prescribed Concentration of Alcohol (PCA) which is about 2 standard drinks.

  • Any alcohol concentration above that is a violation. From 0.05 0 0.79 is low range; 0.08 to 0.145 is mid-range and anything above 0.15 is high range.

  • The penalty depends on a range of factors such as the driving record of the defendant, other driving offences etc.

Fraud and Dishonesty
  • Fraud on an agency of the Commonwealth Government such as Centrelink is a strict liability offence which means the prosecution does not have to prove the mental element (the intention) to convict.

  • This type of offence includes making false declaration to claim a Commonwealth benefit.

Business and Commerce

Loan Guarantees
  • When a person is called upon to act as a guarantor for a loan, they are assuming a liability which would allow the creditor to seize the assets of the guarantor to satisfy the default of the loan. Normally a loan guarantor must have independent legal advice before a creditor will accept a loan guarantee.
Business Structure
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  • Having a private limited company establishes a legal entity that can shield the owner of the business personal liability if the business incurs certain liabilities. For example, if the company loses in a litigation and is ordered to pay a substantial amount in damages.
  • A well-structured company can minimize taxes and achieve efficient distribution of profits as well as tax credits. It can also protect the business entity from certain liabilities.

Franchise Agreement
  • Before a person enters into a Franchise agreement whether it is for a fitness gym or bakery, they should consider the terms of the Franchise agreement Once the agreement is signed, there may be few recourse for the franchisee.

Sale and Purchase of Business
  • Buying or selling a business requires scrutiny of commercial leases, inventory, good will, valuation, non-competitive clauses which may come back to haunt the parties if they are not property executed.

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