Have you been named as an Executor of a will and are not quite sure what you have to do or what your obligations are? Not to worry. Chamberlains have compiled a list of our Executor FAQs – read on!
What is an Executor?
An Executor is a person appointed in a Will to administer the estate of the will-maker (the will-maker is often referred to as the ‘testator’).
Do Executors get paid?
Most Executors do not get paid for their work as they do it voluntarily, often as family members. The testator may sometimes leave a sum of money in their Will to the Executor for their efforts, but if they do not, the Executor will have to apply to the court for a payment. However, all Executors’ are entitled to be reimbursed for any money they spend on behalf of the estate (e.g. funeral costs).
How old does an Executor have to be?
An Executor can be any person who is aged 18 years and over.
As an Executor, can I see the Will before the person dies?
The Executor has no right to read the Will prior to the death of the testator. However, as many Executors are family members, the testator may discuss the Will with or read the Will to the Executor prior to their passing.
Do I have to do be an Executor if I am appointed in the Will?
No. If you do not want to be an Executor you can turn down the responsibility. You may wish to ask the Public Trustee to administer the estate instead.
Can you be the Executor and a beneficiary in a Will?
Yes. Often the main beneficiary is one of the Executors. For example, is quite common for a spouse to be the main beneficiary and also executor in their partner’s Wills.
What does an Executor need to do when someone dies?
In most cases, an Executor will need to:
If the estate involves any litigation the executor is also responsible for seeking legal advice and acting on behalf of the estate in Court.
Chamberlains can assist with any and all of the above. If you’re an Executor after some advice, get in touch with our Wills and Estates specialists team today.
Interested in learning more on Wills and Estates?
Click our recent articles below to find out more:
Deceased Estates and Bankrupted Beneficiaries
Discretionary Trust Duty and Land Tax Surcharges
To challenge a Will, or to make what is called a ‘Family Provision Claim’ against a deceased person’s estate, you must be an eligible person. But if you aren’t a member of the family by birth, are you still eligible to make a claim?
Sarah’s Story
This issue arose recently. Sarah* was adopted when she was 6 months old. She reunited with her biological father (Mark*) when she was 19 years old. She met and established good relationships with her biological siblings, Megan and Louise, but failed to maintain a good relationship with Mark. Some years later, Mark died and his Will stated that all of his estate was to go to Megan and Louise. Sarah wanted to know if she could challenge the Will.
Could Sarah challenge her biological father’s Will?
In short, no. As Sarah had been formally adopted when she was young, the law in ACT and NSW says that Sarah ceased to be regarded as a child of her birth parents and was therefore not eligible to bring a claim against Mark’s Will.
What if Sarah wanted to make a claim against her adoptive parents?
Sarah would be eligible to make a claim in this instance. In the ACT and NSW, an adopted child is regarded in law as the child of their adoptive parents and has exactly the same rights as any child born to the adoptive parents.
Any exceptions?
No rule is without exceptions and Sarah’s right to inherit from her biological father may have differed if:
If you have been adopted and find yourself in a situation like this, Chamberlains can help you to discuss your eligibility to make a claim. Contact our Wills and Estates specialists team today.
Interested in learning more on Wills and Estates?
Click our recent articles below to find out more:
Deceased Estates and Bankrupted Beneficiaries
Discretionary Trust Duty and Land Tax Surcharges
If you think what you post on your Facebook page is none of your bosses’ business, you’d be wrong. We all know that posting a rant about your boss or colleagues is not the best idea, but when can sharing your opinion on social media get you the sack?
The short answer, is that it depends on the content of what you post on social media, and more importantly, what your employer’s policies say about the use of social media inside and outside of the 9-5. But, when most employment contracts don’t set out the precise types of behaviour that you can and can’t engage in outside of the workplace, how are you to know?
Generally, under the Fair Work Act, your employment can only be terminated for conduct occurring outside of work hours (in the absence of anything in your contract), when the conduct is:
To start with, apply the law of common sense: thou shalt steer clear of making threats against your colleagues and ranting about your employer on social media (regardless of whether they mess up your pay). This was a matter that made it to the Courts and the employer, (The Good Guys) dismissed the employee (The ‘Bad Guy’) and the Court held that the dismissal was valid. 1
What about posting anonymously or under a pseudonym? Still risky. Especially when you post derogatory comments on the Facebook page of a not-for-profit organisation who is associated with your employer. In this case the employee changed his occupation on Facebook to read: “Dinosaur Wrangler at Jurassic Park” (dream job, right there). But alas, it was still possible for the adept social media stalker to identify the employee’s real employer, and he was therefore considered to have damaged the interests and reputation of his employer and was validly dismissed. 2
Early this year a U.S. comedian had her television show cancelled following a racist tweet and it appears that, somewhat unsurprisingly, racism on social media is likely to have you packing up your office too. Back in Australia, this was also the case for a senior Victorian police officer who made a number of racist and obscene posts on social media. This police officer was the head of the force’s Professional Standards Command. He resigned.
Although your employer does not have the right to control your actions outside the workplace, there are certain circumstances where off-duty conduct will constitute a breach of your terms of employment and can lead to dismissal. Make sure you are familiar with your employer’s policies regarding social media and the use of IT equipment and software. And if in doubt, don’t post.
If you are find yourself in a tricky situation with your employer call our team at Chamberlains to discuss how we can help.
1 Damian O’Keefe v William Muirs Pty Ltd T/A The Good Guys [2011] FWA 5311
2 Cameron Little v Credit Corp Group Ltd [2013] FWC 9642
Contact Chamberlains Law Firm for any questions and concerns regarding Workplace Law.
Interested in learning more on Workplace Law?
Check out our recent articles below to find out more:
What is a “Business Day” for purposes of effecting service?
Labour Hire Employers Pay for Failing to Meet Workplace Obligations
“Casual’ employees eligible to ‘double dip’ for employee entitlements
If TV has taught us anything, it’s that making a citizen’s arrest is a sure-fire way to be heralded as a hero. But outside of the small screen – are you actually allowed to arrest someone if you are not a police officer?
Citizen’s arrest refers to the power of ordinary citizens to make an arrest or detain someone.
The legislation in Australia differs slightly from state to state, but generally speaking, citizen’s arrest may be enacted in circumstances where the person making the arrest reasonably believes that an offence is being committed or has been committed.
No. Take Anti-Uber activist Russell Howarth as an example. Before Uber was permitted by the transport legislation, Mr Howarth conducted multiple citizen’s arrests on Uber drivers. Mr Howarth would fastidiously set about booking an Uber ride, riding in the Uber to his destination, and when the transaction was complete, would perform a citizen’s arrest of the driver for breaching the state’s Passenger Transport Act.
The NSW Supreme Court did not share Mr Howarth’s view that it was necessary to exercise the power of arrest in those circumstances, stating that a contravention of passenger transport regulations was not a serious offence that would “readily attract the citizen’s power of arrest”.
Uber successfully obtained an injunction to restrain Mr Howarth from conducting any further citizen’s arrests on Uber drivers, as well as the $400,000 costs order. Ouch.
Citizen’s arrest is not an excuse for a free-for-all scuffle with the detainee. The person enacting the citizen’s arrest must not use excessive force during the arrest. The only force you are permitted by law to use is the force that is reasonably necessary to make the arrest or to prevent the escape of the person after the arrest. The person must then arrange for the person to be delivered into the custody of a police officer.
Not all citizen’s arrests are performed with quite the same level of meticulous planning as Mr Horwath’s regime with Uber. In fact, a lot of them are heat-of-the-moment, act-first-think-later kind of affairs. However, you would do well to think first then act to avoid getting yourself caught up in any strife. The first and perhaps most obvious risk is your own personal safety. Perhaps less obvious is the risk of being sued by the detainee for false imprisonment or trespass to the person, or even the risk of being charged with assault yourself.
If you find yourself in a spot of bother regarding an arrest, contact Chamberlains injury compensation team for some specialist advice today. We’re with you.
If you wear a Fitbit you’re probably familiar with how much data your Fitbit knows about you – your sleep and exercise patterns, your heart rate, number of steps, distance travelled, frequency of exercise, speed, body temperature and location to name just a few.
What you might not realise is how this data may affect your personal injury claim.
If you have a compensation claim typically the profession has relied on doctors, clinical notes and other witnesses to provide evidence about your injuries. However, the data from fitness devices (Smartwatches, Fitbits) and health and fitness apps (like RunKeeper, MyFitnessPal, Strava etc.) may now also be used to support your case in a personal injury matter.
For example, imagine you are involved in a motor vehicle accident. You weren’t at fault, so you have commenced a claim for compensation in Court. As part of those proceedings you claim that the injuries you sustained have prevented you from exercising in the way you did before the accident. If you had been wearing a fitness device and recording each of your walks up Mt Ainslie, or each of your bike rides in the months leading up to the accident, this data may be able to support your case in Court.
The converse of this also true: the data from fitness devices could discredit you. Insurers may request a formal Court order for data from your fitness device data – showing just how much you exercised (or how little).
This is an evolving area with technology. Just as we have seen Court orders been issued for records of your Facebook history, it may now become commonplace to compel disclosure of data from your fitness device. This data will only become even more insightful for Courts as the technology becomes more sophisticated.
If you have a personal injury claim, make sure you have a solicitor who is up to date with how the latest technology can affect your claim. Contact our expert team at Chamberlains injury compensation team for an obligation free appointment!
Interested in learning more on Injury & Compensation Law?
Click our recent articles below to find out more:
ACT Workers Compensation – Explained
How to make a Workers Compensation claim in the ACT
The unthinkable has happened. You’ve been involved in a motor vehicle accident and your life has been turned upside down in a split second.
You’re in pain, you’ve had to take time off work and you’re trying to deal with an insurer.
Now what?
You need an experienced lawyer on your side. Someone to help guide you through the process and make sure you are looked after. We’re not just talking about physically. We’re talking about financially.
Our expert lawyers specialise in listening to your story and dealing with insurance companies on your behalf so you can concentrate on your recovery.
Who can make a claim?
If your injuries arise from the negligence of another motorist you can make a claim whether you were another driver, a passenger in either car, a cyclist, motorcyclist or a pedestrian.
How long do I have to make a claim?
Strict time limits apply in the ACT for compensation claims and these are changing constantly. Failure to comply with these time limits may mean you cannot proceed with a claim.
It is important to speak to a lawyer ASAP to discuss how these time limits affect you.
How can Chamberlains help?
Claims get complex. Insurers get difficult. Our lawyers have been handling personal injury claims for many years and we’re experts in our field.
We genuinely care about our clients and we fight hard to achieve great results.
Plus, at Chamberlains we offer advantages you don’t find at all other firms, including:
Don’t put it off if you think it’s too hard, or you’re not sure if you have a claim, that’s what we’re here for. Call us today for a no-obligation chat to discuss your claim.
We’re with you.
Interested in learning more on Injury & Compensation Law?
Click our recent articles below to find out more:
ACT Workers Compensation – Explained
How to make a Workers Compensation claim in the ACT
In Rodney v Stricke (No 2) [2020] NSWSC 1126 costs were ordered against a solicitor personally for administration related delays.
A solicitor was retained to assist a client in an appeal application against an owner’s corporation of a strata committee. Rule 50.3 of the UCPR provides a strict time-frame of when an Appeal must be lodged.
In February 2020, the solicitor requested his assistant diarise a new date for the filing of the application. This was not done.
The solicitor also prepared a brief for senior counsel; however, the brief arrived almost three months later. This was due in part to the changing circumstances of the solicitor’s office and relocation due to Covid-19.
The other party sought their costs of the delay. The solicitor in question opposed the application for costs on the basis that the delay was occasioned by an administrative oversight. The court held that this was not a sufficient reason for the delay.
The court also noted that at the time of the delays “caused” by Covid-19, there were no relevant restrictions in place during or prior to the time that the appeal was due to be filed.
The solicitor consented to a personal costs order in the Defendant’s favour for the costs thrown away for the delay in filing the appeal summons and the subsequent 7-week delay.
The Supreme Court Decision noted that the plaintiff should not be punished for the failure of their solicitor, the judge provided a discretionary decision to grant an extension in time to file summons as the solicitor for the plaintiff would pay the Defendant’s costs.
Takeaways from this case:
**Assisted by; Kody Fletcher**
If you have any questions or concerns please contact Chamberlains and talk to one of our insurance law experts today.
Interested in learning more on Insurance Law and Litigation & Dispute Resolution?
Click our recent articles below to find out more:
Exposure to penalties under the Work Health and Safety Act 2011 (NSW)
Some implications for costs under the CPA 2005 (NSW)
Witnessing Documents and Giving Evidence by AVL
The Federal Court of Australia recently handed down a decision relating to an application for relief in relation to phone numbers associated with a taxi company. The case provides clarity in relation to the issues around property rights existing in phone numbers, and the power of the Court in exercising the discretion to give directions in relation to the external administration of a company.
Facts
The Plaintiff, Manly Warringah Cabs, and RSL Cabs each own 50% of the shares in the Defendant, Sydney Taxis. On 19 August 2020, Manly Cabs applied for a provisional liquidator to be appointed to Sydney Taxis. Sydney Taxis presently operate a radio room and call centre for both shareholders.
On 3 September 2020, Manly Cabs applied for relief in relation to some phone numbers associated with its business. RSL Cabs opposed the application for relief by Manly Cabs and had previously stated its intention to the liquidator to submit a purchase offer for the phone numbers. RSL Cabs do not dispute that the phone numbers are associated with Manly Cabs but claim that Sydney Taxis owns the numbers.
Manly Cabs wish to retain the phone numbers and prevent the transfer of the numbers to RSL Cabs.
Issues
The Court considered a number of issues:
Judgment
Gleeson J first considered whether there is any property in phone numbers, to which it was held there is not, pursuant to s 454B of the Telecommunications Act 1997. The service provider of the phone numbers is Telstra and under Telstra’s terms, the customer does not have any legal interest or goodwill in the phone numbers but may be permitted to transfer the numbers to another party with the prior consent of Telstra. As Sydney Taxis is the customer, they have obtained the contractual rights under Telstra’s terms to transfer the phone numbers. The Court considered two relevant cases to decide on this issue. In Rahme v Telstra Corporation Ltd (1995) 119 FLR 42, the Court held that the plaintiff had a better right to phone numbers, but that this decision will have no precedent value to phone services connected after 1991. In the later case of Saxby Bridge Mortgages [1999] NSWSC 695, the Court did not agree that a right relating to goodwill existed in phone numbers. Therefore, Manly Cabs does not have a better right to the disputed numbers than Sydney Taxis.
In relation to the argument put forward by the plaintiff that Sydney Cabs is the agent of Manly Cabs and RSL Cabs for the purpose of their dealings with Telstra, the Gleeson J held that on the available evidence, her Honour was not convinced that this was so.
Pursuant to s 90-15(1) of the Insolvency Practice Schedule in relation to the external administration of a company, the Court is permitted to make such orders as it sees fit. Per Kelly, in the matter of Halifax Investment Services Pty Ltd (in liquidation) (No 8) [2020] FCA 533, the powers conferred on the Court to make such directions are broad. Gleeson J decided that whether the liquidator is justified in transferring the numbers to Manly Cabs for no consideration is a commercial decision. Furthermore, the Court held that the evidence does not support the exercise of the s 90-15 power to give directions to the liquidator to transfer the disputed numbers to Manly Cabs.
If you have any questions or concerns please contact Chamberlains and talk to one of our insolvency lawyers today.
Interested in learning more on Insolvency and Reconstruction?
Click our recent articles below to find out more:
What happens to your property when you go bankrupt?
Insolvent Trading Relief Continues!
2020 has been a year of many changes, perhaps most notably, many of us are now working from home and at certain times not allowed to leave the house. Furthermore, social distancing laws have limited the number of people allowed in rooms and offices, leading to difficulties in signing documents. Consequently, it is essential to know the general and COVID specific rules around electronic signing of documents.
Generally, standard contracts by individuals can be signed electronically. This means individuals can sign with a personal electronic signature without the need for a ‘wet ink’ signature or witness.
Similarly, companies can generally also sign a simple contract electronically, but this law is less settled. If clear intent can be demonstrated, then it will still likely be valid at common law under s127 of the Corporations Act 2001 (Cth) however the Electronic Transactions Act 1999 (Cth) that allows individuals to sign electronically explicitly does not apply to the Corporations Act.
At common law it is required that a deed must be written (on paper, parchment or vellum), signed, sealed and delivered. The exception to this is New South Wales who introduced s38A of the Conveyancing Act 1919 (NSW) to permit deeds made by natural persons in electronic form with electronic signatures and attestation. The witness is still required to be physically present and must sign the same document at the same time as the signatory. It may still be prudent to continue requiring deeds to be signed on paper, and this exception does not apply to companies.
New South Wales (expires 22 October 2020 unless extended): Witnessing can now validly occur remotely through an audio-visual link for example Zoom.[1] As long as the witness sees the signatory signing the document in real-time and is reasonably satisfied the document they saw signed is the actual document (or a copy of it) then they can witness that document by signing the document if they endorse it with a statement of the method used to sign and that it was done so in accordance with the NSW COVID Regulation.
The Act covers documents including wills, power of attorney or an enduring power of attorney and deeds or agreements.
Australian Capital Territory: The ACT provisions mirror NSW. These provisions cease to have effect three months after there ceases to be a COVID-19 state of emergency in force. At the time of writing the state of emergency in Canberra extends until 19 November 2020.
Victoria (expires 25 October 2020 unless extended)[2]: Individuals are permitted to electronically sign deeds and have similar remote witnessing provisions to NSW.
The Victorian regulation also expressly contemplates the signing of a document electronically in counterparts if each person whose signature is required receives a copy of each signed counterpart. This seems to be in regards to multiple wet signatures rather than electronic signatures.
Queensland (expires 31 December 2020): allows for the electronic signing of deeds, including other enduring documents such as wills, enduring powers of attorney and advance health directives, and the witnessing of certain documents by way of audio-visual link.[3]
South Australia: enacted omnibus legislation that mirrors the above.
Tasmania: their changes primarily apply to councils, general rules still apply to individuals.
Northern Territory and Western Australia: neither have enacted Covid-19 specific electronic signing and witnessing legislation. The general rules still apply here.
Companies (expires 21 March 2021). In May 2020, the Determination[4] was issued, which amends section 127 of the Corporations Act to enable companies to execute documents electronically. The amendment essentially mirrors the Electronic Transactions Act. It provides that if the person signing can be reliably identified and can indicate their intention to sign through a method that is appropriate in the circumstances, then it will be accepted as valid.
Most states have made amendments to ease the difficulties in signing documents during the pandemic. These amendments have been executed on a state by state case. With the consent of all parties, it may be a good idea to record the audio-visual signing to ensure evidence of capacity, volition and identity of the persons involved.
Although these regulations expand the use of electronic signatures, companies and individuals should limit risks by using reliable digital systems to provide additional authentication to the executing parties.
If you are unsure about the requirements in your situation, talk to your law firm where a solicitor can provide more specific advice.
[1] Electronic Transactions Amendment (Covid-19 Witnessing of Documents) Regulation 2020 (NSW).
[2] Covid-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations (2020) (Vic).
[3] The Justice Legislation (Covid-19 Emergency Response – Wills and Enduring Documents) Regulation 2020
[4] Corporations (Coronavirus Economic Response) Determination (No. 3) 2020
If you have any legal questions about commercial and corporate law, reach out to our specialists at Chamberlains Law Firm!
At Chamberlains we hear this all the time, “I’m too young to have a Power of Attorney”, “I have joint bank accounts, I don’t need a Power of Attorney”, “I don’t have any assets anyway, I don’t need a Will or Power of Attorney”. A Power of Attorney is only for the elderly, right?
Wrong.
It doesn’t matter if you are old or young, in business or not, if you do a lot of travelling or not, a Power of Attorney can be very useful.
A Power of Attorney is a legal document that gives a trusted person, the legal authority to act for you, and to make legally binding decisions on your behalf. There are different types of Powers of Attorney and Chamberlains can advise which will best suit you and your circumstances.
Everyone is at risk of an accident or unexpected illness. To be valid, A Power of Attorney needs to be set up while you are in good health and understand what you are signing.
A Power of Attorney is a good idea if you:
Your Attorney should be a trusted person who is capable of looking after your affairs. Your Attorney does not need to have legal qualifications, you can appoint an adult of your choice. You should be confident that your Attorney has integrity and will be able to act in a business-like manner, be impartial and be willing to act in that capacity.
Chamberlains wills & estates experts can help you get your Power of Attorney set up before it is too late. Even if you are old. Or young. We promise it will give you peace of mind. Contact us for an appointment on 6272 0500.
Interested in learning more on Wills and Estates?
Click our recent articles below to find out more:
Deceased Estates and Bankrupted Beneficiaries