Issue 51 - April 2008

• New Succession Act in NSW
• Planning reforms on the way
• The new child support scheme
• Welcome to Gale Witcombe Solicitor
• The Verdict

New laws deal with the construction and interpretation of wills New Succession Act in NSW

The Succession Act 2006 (NSW) commenced on 1 March 2008, moving us closer to uniform succession laws across the country. 

The Act has introduced some significant changes affecting the way we prepare and interpret wills.  The most significant changes are as follows:

The Wills Probate and Administration Act 1898 (NSW) has been renamed the Probate and Administration Act 1898 (NSW).  The provisions in the previous legislation relating to the construction of wills are now dealt with under The Succession Act.
The introduction of court authorised wills for people who lack testamentary capacity (ss 18-26) and minors (s.16)
New rules about beneficiaries who witness wills (s.10).
New rules about survivorship (ss. 35 and 41).  Unless a contrary intention is expressed in a will, the law is now clear that a beneficiary must survive the testator by 30 days in order to become entitled to his or her inheritance.  An exception to this rule is where the beneficiary is a child of the testator and leaves a child or children surviving him or her.  In this case, the failed gift will pass to the child or children surviving the beneficiary as if that beneficiary had died without a will.
The law in relation to the effect of marriage and divorce on an existing will has been clarified (ss.12 and 13).  We strongly recommend that you review your will if you are getting married, have recently married or if you are separated or divorced.
There are new provisions dealing with who will be entitled to inspect the will of a deceased person (s.54).  This right extends to beneficiaries, spouses, the parent or guardian of the deceased person, an attorney for the deceased person or a creditor claiming against the estate of the deceased person.
You should review your will regularly and particularly if your circumstances or the circumstances of your intended beneficiaries change.  If you do not have a will, it is important that you consult with a lawyer to prepare a will to give effect to your wishes upon your death.  To review your will or make a new will, please contact Jayne Humphreys or email jayne@wmdlaw.com.au.

New proposed laws will bring about wide-ranging improvements Planning reforms on the way

Two draft bills have been released for public comment which, if enacted, will bring changes to the planning process with the aim of providing a more efficient, transparent and credible planning system.

Set out below is a brief summary of the key reforms contained within the Environmental Planning and Assessment Amendment Bill 2008 and the Building Professionals Amendment Bill 2008:

Protecting neighbours’ rights and amenity by the introduction of a series of codes which give home owners certainty about the rules that apply to their property and their neighbour’s property
Extending the ability to challenge development to developments other than those defined as designated developments
A faster system for small-scale projects with the proposal to reduce the processing time for small scale residential developments to 10 days (provided that the application meets new design codes to be prepared)
Some major development decisions will be taken out of the hands of local or state politicians and be determined by independent experts
Reducing the time taken for amendments to Local Environmental Plans and for the introduction of new Local Environmental Plans
Reducing legal expenses by having development decisions reviewed by a planning arbitrator rather than the court process, with the intention being for arbitrators to conduct non-adversial reviews, free from legal argument, at a minimal cost
Implementing tougher rules and penalties for accredited certifiers to ensure that there is community confidence in how the certifiers operate, including restricting certifiers from earning more than 20% of their income from one person or company, along with giving the Building Professionals Board (for the first time) the power to cancel a certifier’s practising certificate.
Creating a more accountable (and easily understood) developer contribution system with the types of community infrastructure that can be funded through contribution plans to be clearly defined in the legislation. This will overcome the traditional difficulties caused by the failure of the existing legislation to provide clear guidance as to what can be funded by developer contributions.
If you would like any more information about the proposed changes, please telephone Rebecca Flynn or email rebecca@wmdlaw.com.au.

How will the new child support scheme affect you?  The new child support scheme

From 1 July 2008, the Australian Child Support Scheme will change. The changes will affect parents who pay or receive child support through Child Support Assessments or Private Child Support Agreements.

The Child Support Agency has introduced this new scheme with an aim to:

Reduce conflict between parents about parenting arrangements
Encourage shared parental responsibility
Ensure child support is paid in full and on time.
The current formula uses fixed percentages of income to work out the child support amount payable and does not take into account the different costs of raising children of different ages, any Parenting Orders or Agreements in place or the effect of income tax.

The new formula tries to balance the interests of both parents by focusing on the needs and costs of children. The key components of the new formula are:

The costs of raising children will now be the basis of the formula
Both parents' incomes will taken into account and considered equally
The same self-support amount will be deducted from each parent's income before child support is worked out
A greater emphasis will be placed on arrangements where the care of the child is shared between the parents
Children from first and subsequent families will be treated in a similar way.
Parents paying and receiving Child Support in accordance with the current formula do not have to calculate the new payments themselves. The Child Support Agency will do all of the calculations for you and issue you with a new Assessment before mid-May 2008.

For those parents who have Private Child Support Agreements, the new Scheme may mean that your Agreements will have to be changed.  The Child Support Agency will be reviewing every Child Support Agreement that has been registered with the Agency prior to 1 July 2008 and contacting those parties who will be affected by the change to discuss the effect of the new Scheme on the Agreement.

In the meantime, all current assessments and agreements are still valid so you should keep going with your current arrangements, including payments up to and beyond 1 July 2008, unless you are contacted by the Child Support Agency.

If you would like further information regarding the new child support scheme and how it might affect you please contact Greg Dickson or Amanda Solomon or email greg@wmdlaw.com.au or amanda@wmdlaw.com.au.

Gale Witcombe joins with Warren McKeon Dickson Welcome to Gale Witcombe Solicitor

We are pleased to announce that from 1 May 2008, the practice of Gale Witcombe Solicitor based in Wollongong will merge with Warren McKeon Dickson.

Gale has agreed to remain with the firm at Wollongong as a Senior Consultant. Gale is a very experienced lawyer who will add considerably to our expertise in Transactional Matters, Property Development and Business Advice.   

This new practice is located at Suite 4D, Level 4, 166 Kiera Street, Wollongong NSW  2500 and the telephone number is (02) 4228 0544.   As a consequence of the merger, we will be relocating our Wollongong practice of Jeffrey M Jones Lawyers from 52 Burelli Street, Wollongong to Gale’s premises and a separate announcement will follow as to when this will occur.

Your questions answered The Verdict

In this section, we answer your general questions in relation to any area of law. Obviously, we are not able to provide specific legal advice or advice in relation to a current legal matter. If you have a question you would like us to answer, please submit it by email to rebecca@wmdlaw.com.au.

How can I get my spouse on title to my property now that we are married?

We often get asked to advise clients on how their spouse can have their name registered on a Certificate of Title following their marriage.  There is a simple process in doing this and it involves a Transfer being registered at Land & Property Information.  A declaration will also need to be provided confirming the marriage details.

Will this Transfer attract any stamp duty?

No stamp duty will be payable on the Transfer provided that the property being transferred will vest in both names as joint tenants or tenants in common in equal shares and is your principal place of residence.

Do I require the original Certificate of Title to register the Transfer?

Land & Property Information will not register any Transfer without the original Certificate of Title.  If your mortgagee holds the original Certificate of Title then arrangements can be made for the mortgagee to produce the original Certificate of Title to enable registration of the Transfer.

If you would like any further information in relation to transferring property or any other conveyancing transaction please contact Rebecca Flynn or Gina Haramis or email rebecca@wmdlaw.com.au or gina@wmdlaw.com.au.

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