Issue 30 - July 2006

• Unusual Family Provision Act case
• Testamentary trusts as a form of asset protection
• Planning agreements
• Jury service in New South Wales
• Practice of Mohini Gunesekera merger with Warren McKeon Dickson  

Spare room boarder wins $450,000 award Unusual Family Provision Act case  

The Family Provision Act has been with us for some time. It allows certain classes of persons who had a relationship with the deceased to claim against the estate if they feel that no or inadequate provision was made in the deceased's will for them.

A couple of weeks ago, a boarder in the home of a deceased person successfully made a claim against the estate and was awarded $450,000 by the Supreme Court. The claimant had lived as a boarder (without paying board) with the deceased from 1990 until she died in 2001. The boarder helped the deceased with insulin injections and gave some other personal care. The total estate was worth $1.5 million and the will provided that it was to go to the children of the deceased but did not mention the boarder.

Changes to the Property (Relationships) Act in 1999 (this used to be called the De Facto Relationships Act) gave recognition to certain domestic relationships as potential claimants under the Property Relationships Act including unpaid carers such as this boarder. This has had an impact on claims under the Family Provision Act.

The case is a warning to those people, particularly elderly people, who have shared their home with another and were getting domestic help that they were not paying for, even, as in this case, where they were providing free board.

There are ways to protect estates from such claims and if you have any concerns regarding any elderly relatives or friends who are living with a companion, you should discuss their situation with us to protect them. For any information about the Property Relationships Act or the Family Provision Act please contact Greg Dickson or email greg@wmdlaw.com.au.

Is your will outdated? Testamentary trusts as a form of asset protection

As wealth creation continues to grow and as the model of what constitutes the "normal" family continues to become blurred, the idea of having a "simple" Will may need to be revisited. Furthermore, changes to taxation laws and the operation of trusts may mean that what was acceptable 10 years ago, may not be ideal for you today.

Testamentary trusts are a method of gifting your property in such a way that protects your assets well into the future after your death and provides your beneficiaries with the flexibility to maximise the benefits of the gift that you give them.

There are different forms of testamentary trusts, including optional, fixed and discretionary. In each form, the trust provisions should be tailored to meet your specific needs.

The advantages in creating a testamentary trust as opposed to a simple Will can include:
Increased asset protection - being able to protect the capital (initial gift) of the trust;
Legitimate minimisation of tax in the form of capital gains tax or income tax from the sale of assets or trust distributions.
The best Will for you will depend upon your circumstances and how you envisage your property being distributed after your death. There may be many possibilities you have not considered for your beneficiaries. Contact us to plan the best Will for your circumstances or review your present arrangements.

If you have any questions regarding testamentary trusts or wills in general, please contact Louise Stone or email louise@wmdlaw.com.au or Joel Hiscox or email joel@wmdlaw.com.au.

Escaping a deadlock between a council and a developer Planning agreements

What is a planning agreement? It is a voluntary agreement or other arrangement between a planning authority and a person which is entered in addition to the conditions which can legally be imposed by a Council as part of a development consent.

The planning agreement may include provision for contributions to specific local government infrastructure, payment of money or provision of affordable housing in exchange for development consent providing a win/win situation for the opposing parties in a proposed development - private enterprise and the community generally. The scope of the planning agreement can be specifically drafted to ensure that the public purpose for which the contribution or provision is geared retains longevity of purpose.

There often is a specific reason why community members object to a particular development and the planning agreement may provide a way to resolve such community concerns. A planning agreement cannot be entered until public notice has been given and this will enable the community to be involved in the resolution of the objection.

Planning agreements can also be used to address environmental, ecological and heritage needs. The planning agreement is a form of covenant which is registered on title to the relevant property and it will have the effect of binding future owners of the property to the terms of the agreement.

If you wish to discuss any matter regarding Environmental Law and Planning, please contact Dean Groundwater or Jodhi Coady or email dean@wmdlaw.com.au or jodhi@wmdlaw.com.au.

Jury service is an important part of the trial procedure Jury service in New South Wales

A jury is a group of people (12 for a criminal case and 4 for a civil case) who sit in a court to hear evidence and make decisions about facts with the guidance on the law from a judge. All jury discussions must occur in the jury room and only when all jurors are present. Jurors are not allowed to discuss the case being heard with any other people and must not during a trial use any material or research tool, such as the Internet, to access any material which relates to any matter arising in the trial.

The Jury Branch of the Sheriff's Office administers the jury system in New South Wales. Branch officers liaise with court registries to determine the number of jurors required for trials, to commence and deal with applications to be excused or exempt from jury service and to take follow up action in respect of absentee jurors.

If you receive a "notice of inclusion", it means that you are on a list (randomly selected from the electoral roll for each jury district) from which jurors will be selected over the next 12 months. Some people will be ineligible to serve jury duty (such as parliamentarians, lawyers and policemen), some will be disqualified from service (such as convicted criminals) and others have a right of exemption (such as dentists, pharmacists, doctors, mine managers, pregnant women, the elderly and university students).

Employers are required by law to release employees for jury service and must not dismiss or prejudice employees as a result of their attending jury service. Often employers will continue to pay employees while they are attending jury service however if not, jurors can be paid a daily attendance fee and travel allowance by the court.

If we can assist you in relation to any enquiries regarding jury service or any court or litigation issues generally, please telephone Craig Pryor or email craig@wmdlaw.com.au.

Welcome to our new clients Practice of Mohini Gunesekera merger with Warren McKeon Dickson

We are very pleased to announce that the practice of Mohini Gunesekera, Lawyer of Liverpool, incorporating the practice of Barone & Cavanagh, has merged with our firm effective 1 July 2006.

Mohini is a highly respected lawyer of considerable experience and she has agreed to remain as a consultant to the firm as well as devoting more time to her impressive list of presentations and lectures at legal and academic seminars. We offer a special welcome to all of Mohini's clients who may be receiving our newsletter for the first time and hope that you will continue to enjoy and find useful these monthly electronic newsletters.

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