Johnston Tobin Solicitors

Johnston Tobin Solicitors the law firm, established more than 45 years ago in the 1960’s in Nowra by Timothy Johnston.

The tradition of helping locals with quality legal advice from experienced solicitors continues and we are experienced in conducting a wide range of legal matters right throughout New South Wales, particularly in the Shoalhaven area on the South Coast of New South Wales also servicing the Wollongong, Shellharbour, Kiama, Gerringong, Nowra, Jervis Bay, Ulladulla, Bowral, Mittagong and Moss Vale areas.

Our experienced and friendly legal professionals can provide sound advice and legal assistance in rural and residential conveyancing, property development, commercial and farming agreements and leases, family law disputes, business law transactions, wills and estate planning, probate matters, civil litigation and all court matters including defended criminal law matters.

We offer competitive rates and provide quality and efficient legal services.

WILLS & ESTATE PLANNING

A Will can be exactly that, a plan recorded in writing of how you want your estate dealt with, once you
pass away. Rather than just a disposal of property, it affords you an opportunity to plan what should
happen, consider the best way to deal with your assets, so your loved ones are cared for in the proper
way or are rewarded appropriately.

Often the first question is how to split up the estate and this may come down to individual circumstances
so that a simple Will, is not sufficient. A mistake in my view, some Wills leave specific assets to specific people and some go to a great deal of trouble to try and make gifts equal, as far as possible, in value. While that might be acceptable for things like family heirlooms or personal items, the danger is with larger assets they can either decrease or increase in value, disproportionately to other gifts, so what was intended is not what actually occurs when the time comes.

An example is where one beneficiary is left a house and another, the contents of a bank account or investments. I have acted in court cases in these types of matters. One involved an old country house to one beneficiary and a large investment, left to another, the house increased in value over the years assisted by renovations using funds from the investment, which was nearly depleted by the time of the persons death. Another saw the house sold and the funds put in the bank. Both had the same result, frustrating the original intention of the testator and leading to a dispute. While the size of the estate has a bearing on how Wills are drafted and might permit such clauses, a simple way to get around this type of problem is to divide the estate into shares or percentages.

The current economic times are a good example, highlighting the changing value of assets. A Will can contain a testamentary trust to spread bequests overa number of years. Whether for tax purposes, ongoing financial support or even to protect a beneficiary from themself, or claims by others, such a regime may be a more responsible way of structuring your estate to protect your loved ones.
There are also many examples of people having large sums of money thrust upon them suddenly with disastrous results.

The value of a properly prepared Will cannot be understated.

GAMBLING AND WASTE IN PROPERTY SETTLEMENTS

When determining a property settlement between parties, after a separation, the Court can look at all the
relevant facts of the matter to determine what is just and equitable. Those facts can cover a myriad of
situations one of which is wastage by a party to the marriage or relationship. By wastage I mean one of
the party’s actions has caused a financial loss to the matrimonial asset pool.

The court in one matter described waste as coming from a party’s reckless, negligent or wanton actions.
(Kowaliw’s Case) Examples of wastage could be gambling by one party, the sale of assets that existed at
separation with the funds unreasonably expended, such as on overseas holidays or the giving away of
assets of some value with claims they were of little or no value.

The question is if the asset or money no longer exists because of this waste, should the value by ‘notionally’, that is as if it still existed, added back into the asset pool. This would allow the split to still take place on a fair basis with a subsequent reduction in the part to go to the responsible party to reflect the part wasted.

Essentially the notional asset or money, would go to that party. This has been a fairly controversial area of Family Law in the past and remains so although it is widely held to be a genuine reason for adding back the value to the asset pool. The issue usually is centred around whether it was
wasteful or not.

Court authorities say if the expenditure was to meet reasonable incurred living expenses or necessary outgoings then there would be no need to add the monies back. I have had many cases where a party is concerned about their partner’s reckless habits when it comes to things such as investments or bad or failed business ventures and the suggestion is that the prime decision maker should bear the loss. The bad news here is the rule that came from a Full court judgement said “marriage is an economic partnership” and in the absence of proven waste, losses “should be shared equally”.

If you want to make sure your get your fair share of the asset pool, give us a call at Johnston Tobin Solicitors to discuss your situation.

SOLICITOR VERSUS PUBLIC TRUSTEE FEES

When it comes to having a Will prepared I have said many times it is wise to use the services of a solicitor. The cost is usually a bargain compared to the peace of mind that comes from having a properly prepared Will.

I know there can be attractive alternatives to get a Will other ways, which might save you a few dollars and one is to use the Public Trustee’s free Will service. Well, free provided you appoint them to be your Executor, in which case they will charge you for administering the Estate and obtaining a Grant of Probate, if that is required.

Probate is the application by an executor to the Supreme Court for approval to deal with the assets of the Estate. While this may not be a welcome thought at such an emotional time, it is essential in many cases to allow collection of monies from bank accounts, sell assets and many other actions regarding the Estate. There is a cost involved but exactly what those costs are depend a number of things, essentially related to how the estate is structured and the value of the assets.

Solicitor’s costs in obtaining Probate are regulated by the Legal Profession Act. The schedule sets out a scale of fees, which can be charged by a solicitor for the work based on the value of the assets. A basic application includes obtaining instructions, advice relating the estate, verifying details of assets, preparation of court documents, execution, filing, answering requisitions, perusal of grant and arrangements re distribution. An example of the fees chargeable by solicitors are;

Asset value Allowable Fee (incl’s GST)
$150,000.00 $1,837.00 (or 1.22%)
$300,000.00 $2,100.00 (or 0.86%)
$500,000.00 $3,558.50 (or 0.71%)
$750,000.00 $4,787.20 (or 0.64%)
Compare this to the Public Trustees standard fees;
$150,000.00 $6,050.00 (or 4.05%)
$300,000.00 $9,900.00 (or 3.3%)
$500,000.00 $12,100.00 (or 2.42%)
$750,000.00 $13,200.00 (or 1.76%)
In both cases there can be additional costs for work done
which does not fall into a standard first time application
for Probate. These are usually charged at an hourly rate,
plus any disbursement costs. Give me a call if you
would like advice about your Will and Estate.

NEW POWER OF ATTORNEY LAWS

The law controlling Powers of Attorney has undergone more changes with an amending Act coming into force
in September of this year. With the intention of tightening up an area of law prone to abuse in the past, legislators have attempted to build in more safeguards and security measures to prevent incidents of fraud. There are now 2 types of Powers of Attorney, a General power and an Enduring Power of Attorney, as compared to the past when there was only 1.

The old format oddly enough entitled General Power of Attorney, could be given an enduring quality by having the Certificate contained within it, completed by a lawyer. An Enduring Power of Attorney has the added benefit that if the person granting the power, known as the principal, was to lose capacity, the appointment would still be effective. That situation could arise for a number of reasons, such as incapacity arising from an accident where the associated trauma resulted in unconsciousness or a coma, or the onset of a form of mental incapacity, such as dementia or Alzheimer’s.

Of course not every appointment to be an attorney needs to be enduring, in fact some specifically are intended not to be, these are the General Powers of Attorney, intended usually, for example for business or similar purposes. The new format to be used, which commenced use in September will be mandatory from 1 March, 2014, clarifies a number of areas problematic in the past. One is dealing with joint appointments where the appointment has been made requiring 2 attorneys to always act together and one cannot for some reason, even on a temporary basis. This situation may be because of
one’s death or simply unavailability.

The new law makes provision for this to be clarified in the document so the lone attorney could continue to exercise the power or a substitute could step into their place. Again both of the new documents require a principal to specifically authorise an attorney to take a benefit for their own purposes, that benefit essentially being the principal’s assets or money, otherwise it is illegal.

The new format also requires the attorney to sign an acknowledgement that they must always act in the
principals best interests, keep their own money and property separate, keep accounts and records of the
principal’s assets and act honestly. Give us a call at Johnston Tobin Solicitors to make sure your Power of Attorney is up to date and effective.

Check out Mark Tobin’s Interview with Barry Mac on Tips for Selling Your Home:

http://www.2st.com.au/index.php/shows/barry-mac/54152-tips-before-selling-your-home

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