Unfortunately, particularly during our advancing years, many of us reach the point, either mentally or physically, where we are unable to manage our financial affairs.

You can execute a Power of Attorney now, which will only become active if you one day become unable to manage your affairs and this is evidenced by a letter from a medical practitioner.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 22 February 2020.

Robert purchases a stud bull from Max at an auction.

The Auction Brochure describes the bull as a valuable type of Angus bull. Robert purchases the bull for $30,000 for breeding purposes.

Subsequent DNA testing reveals that the bull is not what it seems and is incapable of being registered.

Robert commences action in the District Court alleging that Max has engaged in misleading and deceptive conduct.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 15 February 2020.

Ruth resides in a retirement village.

Ruth’s son, Matthew talks to his mother about his plans to buy a house. Matthew is concerned that he will not be able to obtain sufficient finance to pay the purchase price.

Matthew suggests that Ruth contributes to the purchase on the basis that she can reside with Matthew and his wife, Anne.

Ruth verbally agrees to pay $150,000 towards the purchase price and Matthew and Anne agree that Ruth can reside in a separate living area in the house for her lifetime.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 8 February 2020.

Mary passes away leaving her whole estate to her niece, Katherine under the terms of a will that she made two years before she passed.

The estate comprises of two properties in Sydney, shares and cash totalling $7 million.

Mary’s nephew, Ryan challenges the validity of Mary’s will, claiming that she lacked the capacity to make the will and that she did not “know and approve” the contents of the will.

Ryan received a one-third share of Mary’s estate under the previous will.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 1 February 2020.

Bill, married to his second wife Mary, has two children to a previous relationship.

Bill consults his solicitor about making a will that looks after Mary as well as providing for his two children.

The Fair Work Act 2009 (the Act) provides permanent employees of most NSW employers protection from unfair dismissal, including employees of small businesses. A Small Business Employer is defined as one with fewer than 15 employees.

However, the Act treats Small Business Employers differently to larger employers in several key respects, most notably the Small Business Fair Dismissal Code (the Code).

The State Insurance Regulatory Authority (“SIRA”) has released the fifth version of the Motor Accident Guidelines which took effect from 20 December 2019.

It is important for motorists to be aware of the key changes in the revised version to be better informed of their legal rights and entitlements.

If you are in a blended family, it is common that a Will may be drafted that allows your executor to acquire an interest in an aged care facility for the benefit of your surviving spouse.

This can become a problem because frequently the contract with the retirement village or aged care facility may require the accommodation bond to be refunded to the estate of the life tenant.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 25 January 2020.

Bill was planning an expedition to explore the Australian outback. On his way to the outdoor-gear store, he was involved in a serious motor vehicle accident which resulted in him requiring immediate life-saving surgery.

Bill was conveyed to the nearest hospital and placed under the care of Dr Simpson, Surgeon.  Before commencing surgery, the theatre Anaesthetist, Dr Gerald, needed to place Bill under anaesthetic. The anaesthetic was stored in a glass vile which itself was placed in disinfectant liquid to ensure its exterior was sterile.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 18 January 2020.

Sam passes away, leaving two children, Michelle and Harry.

Sam’s will leaves Michelle $10,000 and the rest of his estate to Harry.

Ten years earlier, Sam transferred his home to himself and Harry as joint tenants. The intention was that when Sam died, Harry would receive the house by way of survivorship. No money changed hands. They hoped that this would prevent Michelle from making a successful claim against the house when Sam died.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 11 January 2020.

Jack and Jill make a New Year’s resolution to get their estate planning up-to-date. This has been their same New Year’s resolution for several years now.

Jack and Jill attend an appointment with their estate planning lawyer and they first discuss their wills.

Jack and Jill advise the lawyer that they have a blended family. This means that they both have children from a previous relationship. They are advised that they can make relatively simple wills at minimal cost that will reflect their wishes but that these simple wills may be at risk of being contested and may also ultimately not achieve their goals of providing adequately for each other as well as their respective children.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 21 December 2019.

Santa is looking to reduce the costs of his international operations, so in April 2019 he opens a toy manufacturing factory at an undisclosed location in Australia, which will service the Southern Hemisphere.

A team of Santa’s Elves are relocated to Australia to operate the new factory and Santa hires an accounting firm, Krampus and Associates, to deal with payroll.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 14 December 2019.

On 11 December 2019, Santa was performing his annual pre-Christmas present delivery rehearsal. At approximately 2 AM, he was riding his sled over New South Wales, when his lead reindeer, Rudolph, got startled by a flock of migrating Hawk-cuckoos.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 7 December 2019.

Tom, aged 80, sells his home for $4 million. Tom’s wife passed-away several years ago and his son, Stephen has been managing Tom’s financial affairs.

When Tom’s daughter, Elizabeth discovers that the proceeds of sale were subject to the repayment of a $2 million “reverse mortgage” she becomes concerned about her brother’s conduct.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 30 November 2019.

On Melbourne Cup day in 2015, Sarah spent the day celebrating and drinking with her friends at her local pub. By about 3pm, Sarah was so intoxicated that she was refused service at the bar. Despite her embarrassment, Sarah remained on the premises until about 5pm that evening.

The pub offered to call Sarah a taxi and gives her the option to use the pub’s courtesy bus. However, Sarah declined the pub’s offer and told them her friend would drive her home. At approximately 5:15 pm, Sarah walked out of the pub and proceeded to walk home by herself, despite advising the pub owner she was being transported by a friend. At approximately 5:20pm, while crossing a nearby road, Sarah was hit by a motor vehicle. Sarah suffered serious bodily injury as a result of the incident.

If you have been involved in a motor vehicle accident, it is important to be aware of the relevant time limitations associated with lodging a claim for common law damages. A claim for common law damages is a claim for pain and suffering (otherwise referred to as non-economic loss), and economic loss, outside of the initial statutory benefits phase of the NSW CTP scheme.

If you make a will leaving an inheritance to one of your children, and that child dies before you, there is a legislative requirement that the inheritance that the child would have received, is taken by their children. If a deceased child has more than one child, they all share their parent’s inheritance equally.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 23 November 2019.

While riding his motorcycle on the highway, Jason is struck by a car driven by Heather.

Jason suffers injuries, which prevent him from attending work for a significant period. He makes a claim under Heather’s Compulsory Third Party Insurance.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 16 November 2019.

Carol is 90 years old. She resides in a nursing home and has dementia.

Five years ago, Carol’s daughter, Elizabeth was appointed by the Guardianship Tribunal as Carol’s financial manager.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 9 November 2019.

Doctor Scott dies by his own hand, leaving $100,000 to his son, Tim and leaves the rest of his $2 million estate to two charities.

CharityOne provides funding for medical research and CharityTwo provides aeromedical care. Dr Scott donated to these charities during his lifetime.

Tim described his relationship with his late father as “a poor one in many respects”.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 2 November 2019.

Larry and Diana are married and have three children. They make wills leaving everything to each other.

Larry and Diana separate several years later. They divide their matrimonial property and enter into a formal agreement under the Family Law Act but they never proceed with a divorce.

If you are eligible to challenge a will on the basis that you do not receive adequate provision, the limitation provisions state that you must commence action before the expiry of 12 months after the date of death.

This time period can expire quickly during periods of grief and times of tensions within a family.

Most Australian employees are covered by a Modern Award, which sets the minimum entitlements for employees working in any one of over 150 industries.  Some employees can be covered by two or more Modern Awards where their duties do not fall squarely within the definition of a single industry.

Dependants of workers who have been killed during the course of their employment are entitled to make a death benefits claim under the Workers Compensation Act 1987. The claim can comprise of a lump sum payment, weekly payments for each dependent child and reasonable funeral expenses.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 26 October 2019.

Dianne owns and operates Coastview Lodge, a bed and breakfast with ten rooms. On 15 December 2018, Dianne meets with husband and wife, Bonnie and Clyde, to discuss a potential employment opportunity. It is agreed that Bonnie and Clyde will commence working at the Lodge on a trial basis with a view to move into permanent positions pending their performance over the next month. Clyde is employed as a Chef and Bonnie in Guest Services.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 19 October 2019.

Amanda and her five-year-old son, Jackson, began renting a property in July 2018. The house was lavishly constructed and had tall glass sliding doors connecting the living room to the outdoor entertaining area.

The glass sliding doors were installed a few years earlier, and at the time, had complied with Australian Safety Standards. However, the standards became more stringent over time, requiring that the glass thickness be increased. Unfortunately, the landlord was not aware of the change in standards and therefore did not arrange for them to be replaced.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 12 October 2019.

Kate, director of KTZZ Pty Ltd is looking to purchase a property in the name of her company. She negotiates the price with the real estate agent and after conducting Pest and Building reports, exchanges contracts with the vendor, Chris.

The company pays a partial deposit of 5% on exchange.

Kate guarantees the obligations of the company under the contract of sale.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 5 October 2019.

Jack and Jill have been in a relationship for the last 15 years and have a blended family. Jack has two children to a previous relationship and Jill has three.

They own their home jointly and have superannuation and some savings.

They have relatively simple wills, leaving all of their assets to each other and the last survivor leaving their whole estate to all five children equally.

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 28 September 2019.

In 2017, James and Hannah attended Dr Samuels, an infertility specialist, for the purpose of obtaining advice on undergoing in-vitro fertilisation (IVF).

During their consultation, James told Dr Samuels that he suffered from anti-thrombin deficiency (ATD), an inherited condition that causes increased risk of blood clotting. 

Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 21 September 2019.

Mina owns and runs a business called “Shorelock Homes”, which provides 24-hour security services to resort complexes along the coast.

Mina employs Carol as a full-time security guard. Carol works an average of 38 hours per week on a 12-hour shift rotation. Mina ensures Carol is paid the correct penalties and loadings in accordance with the applicable Modern Award (Security Services Industry Award 2010).

We are pleased to announce James Blaxland as a new Principal of Ticli Blaxland Lawyers, joining existing Principal, Manny Wood.

James is honoured to continue the work of such a respected firm that is renowned for the exceptional legal services it has provided to the Coffs Harbour area for almost 80 years.

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 24 August 2019.

In 1979, Lisa was ten years old when she fell victim to sexual abuse perpetrated by her uncle. Unbeknownst to anyone, Lisa endured the abuse for over five years before relocating to another state with her family.

Unfortunately, Lisa’s trauma was so severe that she underwent years of counselling. It was not until 2016 that she confided in a friend about her past trauma and found the courage to report her uncle to police, who eventually charged him with several counts of child sexual abuse.

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 17 August 2019.

Robert married his second wife, Christine, several years ago. He makes a will leaving the whole of his estate to Christine.

Five years later, Robert’s relationship with Christine breaks-down and they divide their assets.

They agree to sell their jointly owned home and to distribute the proceeds of sale equally. A buyer is found and contracts for the sale of the land are exchanged.

Robert tells his two children to a previous relationship, that he is making a new will and that they will receive the whole of his estate.

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 10 August 2019.

Harry purchases a half-interest in a farming property from his father in 1975 for $25,000.

Harry meets Sally in 1990 and they have three children together. Harry is the primary breadwinner and Sally fulfils the role of homemaker.

In 2010, the farm is rezoned for residential use which substantially increases its value.

Unfortunately, in 2015, Harry and Sally separate.

In 2017, Harry sells the farm for $10 million.

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 3 August 2019.

Jason is a self-employed brick cleaner. He owns a ute and all the tools required to complete his work, including a generator needed to power the hose for spraying bricks with hydrochloric acid.

While lifting the generator into his ute, Jason injures his lumbar spine and requires physiotherapy for twelve months. He initially ceases work but slowly returns over the twelve-month period.

Six weeks after Jason returns to full-time work, he is contracted by Gary on the construction of a two-storey house. While working on scaffolding in the early morning, Jason loses his balance and falls 4.5 metres to the ground, landing on a pile of bricks. There are no witnesses to the fall.

Motor vehicle accidents can be distressing for all parties involved, particularly passengers who through no fault of their own, fall victim to the negligent driving of others. Passengers who have sustained injuries in a motor vehicle accident are entitled to make a claim for statutory benefits and in some circumstances, a claim for common law damages under the NSW compulsory third party compensation scheme.

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 27 July 2019.

Allan attended his General Practitioner complaining of a painful, darkly pigmented lesion on the sole of his right foot. The doctor diagnosed the lesion as a plantar wart and administered cryotherapy.

Over the next two years, Allan was treated for a plantar wart by several doctors, before a biopsy revealed the lesion was in fact a malignant melanoma. Distressed about the news, Allan underwent urgent removal of the lesion. Unfortunately however, the melanoma had metastasised by this stage and Allan was diagnosed with stage 4 melanoma.

Whenever you purchase goods or services as a consumer, there are built-in guarantees designed to protect you. These guarantees apply regardless of any written contract or terms and conditions applying to the transaction.

A person, or a business, will be considered a consumer if:

Executors can apply to the Supreme Court for a payment for their “pains and troubles”. This payment is called commission.

Commission is awarded at the discretion of the Court and based on the complexity of the estate and the value of the assets.

Commission is normally around 2% of capital realized.

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 20 July 2019.

Jenny commences civil action against her uncle, seeking damages for alleged sexual assaults that occurred when she was 12 years old, some 40 years ago.

Jenny is now able to make a claim for compensation due to amendments to the Limitation Act in 2016, that allow an action to be “brought at any time”.

Jenny’s uncle makes an application to the Court, seeking that proceedings be permanently “stayed” on the basis that he has now developed advanced dementia and is unable to participate in the proceedings. His solicitor claims that a fair trial is not possible and that the continuation of proceedings would amount to an “abuse of process”.

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 13 July 2019.

Martin and Natalie had been married for 50 years.

During a period of separation, 10 years ago, Natalie made a will leaving the whole of her estate to their four children.

When Natalie is diagnosed as suffering from terminal brain cancer, Martin prepares a new will for her, without the assistance of a solicitor, leaving the whole of her estate to him.

When Natalie passes away, her estate is valued at $3 million.

When Martin attempts to obtain a grant of probate, the children commence Court action, claiming that the new will is invalid.

Suffering an illness or injury that renders you unable to work can be a devastating and life altering ordeal for you and your family, particularly if you do not have insurance.

However, you may be entitled to make a claim for total and permanent disablement (TPD) or income protection through your superannuation fund.

Since the commencement of the NSW compulsory third party (CTP) scheme on 1 December 2017, approximately 60% of car accident victims have had their injuries categorised as ‘minor’. As a result, many injured motorists have had their statutory benefits cut-off despite suffering ongoing disabilities and loss of income.

There are no longer death duties and there is no such thing as a gift tax. But…

Probate costs are regulated according to a sliding scale based on the value of the estate. For example, the costs of obtaining a grant of probate in a $600,000 estate is around $4,000 and in a $1,000,000 estate the costs are around $6,000.

Read More

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 6 July 2019.

This week’s column updates a case involving Susan and Gordon. They were in a blended family and when Susan dies leaving Gordon with an indexed annuity of $52,000 per year, Gordon made a claim against her estate seeking further provision.

Gordon owns his home, has $300,000 in superannuation and a further $150,000 in savings.

Susan’s will left the remainder of her $5 million estate to her two children, from a previous relationship.

Susan’s children were able to demonstrate that they had relative financial needs.

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 29 June 2019.

Barbara receives a telephone call at her home in the middle of the night. She is informed that her son, Colin, has died in a motor vehicle accident caused by another driver. Barbara is understandably overwhelmed with grief and horrified at the sudden loss of her son.

Over the next few months, Barbara’s mental health deteriorates and she is ultimately diagnosed with a post-traumatic stress disorder (PTSD) and a major depressive disorder.

Barbara commences legal proceedings against the driver of the at-fault motor vehicle, claiming that his negligence, which caused her son’s death, also caused her psychological injury. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 22 June 2019.

Greg and Sophie were due to undergo in vitro fertilisation (IVF) treatment on 19 June 2019. On the morning of their final IVF appointment, Greg was involved in a motor vehicle accident and conveyed to hospital. Unfortunately, he suffered a stroke in the intensive care unit and was pronounced dead later that evening.

Devastated by her husband’s death, Sophie made an urgent application to the Supreme Court of NSW seeking authorisation for Greg’s sperm to be lawfully extracted and stored for later use. Although Greg had not provided written consent prior to his death for the removal of his sperm, the Court granted the extraction and ordered that the sperm be cryopreserved and stored at the hospital. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 15 June 2019.

Julie was fifteen weeks pregnant when she was involved in a motor vehicle accident. As a result of the accident, she sustained a severe brain injury and fractured neck.

Julie was admitted to the intensive care unit and placed on life support. Unfortunately, ten days after her admission, she was classified brain-dead by her treating clinician. Accordingly, her clinician sought to withdraw her life support on the basis that any further treatment would be “futile”.

David, Julie’s spouse, was horrified when he was informed of the doctor’s decision. He disagreed with the doctor and demanded that treatment continue in the hope that it would allow for Julie’s fifteen-week-old foetus to continue developing until it reached a viable gestational age. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 8 June 2019.

Melanie, a young mother of one, dies unexpectedly. She did not have a will.

Melanie’s mother, Susan, makes arrangements regarding the funeral and burial.

Michael, claims that he was in a de facto relationship with Melanie at the time of her death and that he should have the right to make the arrangements, stating that he wishes for Melanie’s remains to be cremated.

Michael makes an urgent application to the Supreme Court, seeking a declaration that he is Melanie’s next of kin and that he has the right to control the “form of disposal of her body”. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 1 June 2019.

Anna rents a unit for a term of three years.

Towards the end of the lease, the landlord becomes aware that Anna is sub-letting the premises through Airbnb.

When the term of the lease comes to an end, the landlord issues Anna with a Notice to Vacate, rather than relying on a breach of the lease due to Anna sub-letting the unit.

After the landlord takes possession of the unit, it is discovered that Anna has carried out unauthorised alterations and additions to the unit and it is also discovered that there is unreasonable wear and tear of the premises due to the premises being occupied by hundreds of people through Airbnb. [continue reading…]

Gifts and other transactions that you make during your lifetime can be overturned after your death?

If your will is challenged by way of a family provision claim, the court has broad powers to “claw-back” transactions that occurred before your death.

The powers of the court extend to transactions that took effect within 3 years before the date of death and transactions that took effect at your death and after your death. [continue reading…]

A Prison Authority was found negligent for failing to prevent the assault of a convicted rapist by other inmates.

The Supreme Court of NSW has recently found that a prison authority was negligent when it failed to prevent an attack against a prisoner by other inmates.

The prisoner was on remand awaiting sentencing for sexual [continue reading…]

There are important legal and insurance issues that relate to the purchase of low-cost motor vehicles?

It is often the case that people do not consider the legal ramifications of insurance and title relating to low cost motor vehicles.  The issue of low cost motor vehicles is particularly relevant to people on low incomes and young people buying their first car. [continue reading…]

Motorists injured in car accidents may be missing out on their full compensation entitlements?

If you were seriously injured in a car accident after 1 December 2017, you may have lodged a compensation claim with the Compulsory Third Party (CTP) insurer of the driver at fault. The CTP insurer may have reimbursed you for your reasonable and necessary treatment expenses and a portion of your loss of wages resulting from the accident. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 25 May 2019.

Michael decides to rent his two-bedroom home to Elizabeth.

Michael does not inspect the property for any dangers nor does he retain a builder or handyman to inspect the property.

The property has a rear deck that is 1.5 m above the ground.

Unbeknown to Michael, the deck railing contains rot, which was not evident from a casual visual inspection, as there was paint covering it.

A few days after Elizabeth moves into the property, she leans against the railing and it gives-way. Elizabeth falls onto the concrete path below and severely injures her lower back. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 18 May 2019.

Olivia purchases a second-hand vehicle for $5,000.

Olivia makes enquiries with a number of insurers in relation to obtaining comprehensive insurance but considers that the premiums are too expensive given the value of the vehicle.

Olivia is aware that she obtained third-party personal injury insurance as a condition of the registration of the vehicle and believes that this is sufficient.

Unfortunately, Olivia is driving home one evening and fails to see a late model Mercedes-Benz in front of her and collides with the rear of the vehicle. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 11 May 2019.

Josh, warehouse storeman, severely injures his spine when he lifts a 60kg crate full of electrical components.

Josh proceeds through the Workers Compensation process and eventually commences proceedings in the District Court against his employer for negligence.

The employer claims they are not liable for negligence because Josh breached their policy against lifting anything above 20kg without assistance, and that Josh knew his actions were unsafe.

Josh claims that he and other employees were routinely expected to lift greater weights than 20kg and that he did not know the weight of the crate of electrical components before he lifted it. He also gave evidence that there was no trolley and no other employees available to assist him. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 4 May 2019.

Olivia, 23, has been working part-time while studying at high school and university. She has been able to save enough money to purchase her first car.

Olivia makes enquiries with her local car yards but finds that the cost of the cars are out of her price-range.

Olivia finds a vehicle on Gumtree that is within her budget and she negotiates a sale price of $5300 with a private seller.

Olivia inspects the registration papers and the seller’s drivers licence and ascertains that the seller is in fact the current owner of the vehicle. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 27 April 2019.

Barry has a credit account with his local convenience store.

When Barry attends the store to pay part of his account, the store owner, Mr Brown hits Barry with a wooden table leg.

Barry suffers injuries to the left side of his head resulting in profuse bleeding.

Barry is taken to hospital by ambulance and is diagnosed with facial fractures and the loss of vision in his left eye.

The eye does not recover and Barry remains blind in that eye, which still bleeds and causes him pain and headaches. He runs into things and knocks things over because he cannot readily judge distances. He has trouble sleeping and he suffers from flashbacks of the incident. [continue reading…]

If you don’t have a will, your de facto spouse gets around $470,000 out of your estate plus all of your personal effects and half of anything left over.

If you do not have a will, your estate will be dealt with under the “rules of intestacy”.

Section 106 the Succession Act 2006 states that your spouse, whether you are married or whether you have a de facto spouse, receives a lump sum of $476,551.31 plus all your personal effects and half of the rest of your estate. [continue reading…]

Work Capacity Decisions in Workers Compensation Claims

If you have made a Workers Compensation claim and the insurer has made a “work capacity decision”, you can now challenge that decision in the Workers Compensation Commission, following recent changes to NSW Legislation. [continue reading…]

The Personal Property Security Register (PPSR) and its effect on you as an individual and if you are in business

It is important for people to understand that the PPSR was set up to register security interests over personal property as opposed to real property (land). [continue reading…]

Family Provision

If a will is challenged, it is often by way of a family provision application.

What is a family provision application?

A family provision application is a claim made against the deceased estate whereby the plaintiff seeks additional provision to what they receive under the will, if any.

In 2018, there were over 1000 applications made in the Supreme Court of New South Wales.

[continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 20 April 2019.

After moving into a retirement village, Joyce realises that she is not seeing enough of her family.

Joyce’s daughter, Leanne, has a substantial mortgage over her home that she owns with her husband, Trent. She talks to Joyce about the financial pressure of making the mortgage repayments.

Joyce and Leanne decide that it would be better for both of them if Joyce sells her interest in the retirement village and they buy a new property with a granny flat for Joyce. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 13 April 2019.

Jenny makes a successful claim against the estate of her late grandmother.

She is awarded the sum $45,000 on the basis that she was financially dependent upon her grandmother and that her grandmother had made no provision for Jenny in her will.

The court orders that the $45,000 sum is to be borne by Jenny’s mother’s share of the estate.

Unfortunately, a further dispute arises between the executor of the estate and Jenny in relation to the payment of legal costs.

It is normal for a successful claimant to have their legal costs paid out of the estate.

However, if an executor has made an offer to a claimant, that is not accepted and the offer is more than what is ultimately awarded, the court may make alternative orders in relation to the payment of legal costs. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 6 April 2019.

Penny makes a will, leaving the whole of her estate to her second husband Michael and her three children to a previous relationship, on the basis that they each receive an equal share of her estate.

Penny also makes a power of attorney appointing Michael as her attorney.

Several years later, Penny loses the ability to manage her financial affairs and under the power of attorney, Michael sells an investment property owned by Penny and deposits the proceeds of sales into their joint bank account.

When Penny dies, Michael administers her estate under his appointment as her executor. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 30 March 2019.

David is looking into purchasing a unit in a Strata complex.

David examines the contract and is pleased that it contains a special by-law granting him the right to park his vehicle on common property.

David exchanges contracts and the matter settles in April 2000.

Many years pass and one day David is advised by the body corporate that he does not have a right to park his vehicle on common property and he will need to park his vehicle elsewhere. Apart from the inconvenience, he is concerned about the effect of not having a parking-space on the value of his unit. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 23 March 2019.

Mr Smith is travelling by train with a group of friends. He is drinking alcohol.

Two police officers speak to Mr Smith and confiscate the alcohol. He swears at the officers and becomes confrontational.

At the next stop, the officers direct Mr Smith to leave the train.

Mr Smith disembarks and his girlfriend follows. Mr Smith and the officers attempt to persuade Mr Smith’s girlfriend to remain on the train. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 16 March 2019.

Brothers, Raymond, Donald and Eric establish a company together known as Brown Laundry Pty Limited.

The brothers look-into purchasing a property from which to run the business.

The brothers find a suitable property and their company pays the deposit.

To finance the balance of the purchase price, loan and mortgage documents are signed by the brothers.

However, Raymond had previously been in financial difficulties and Eric was facing an imminent divorce. The brothers therefore decide to register the property in Donald’s sole name. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 9 March 2019.

Andy attends the local police station, in response to the police having attempted to contact him earlier in the day.

Andy is immediately arrested, without warrant, for breach of an apprehended violence order (AVO). He agrees to participate in a recorded interview with the police, which lasts approximately 80 minutes. At the conclusion of the interview, Andy is released without charge.

Andy commences legal action against the State of NSW, seeking damages for wrongful arrest and false imprisonment. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 2 March 2019.

Betty, aged 70, trips and falls heavily in an area outside an aged care facility. Unfortunately, she suffers substantial bruising and significant injuries to her left wrist and right elbow.

The cause of the incident was the edge of a concrete slab bordered by sunken surrounding brick pavers which created a height difference of between 10 and 20mm.

A year later, as a result of the injuries, Betty is still experiencing significant problems with her wrist and elbow.

Betty makes a claim in the District Court, alleging that the aged care facility was negligent in failing to remedy the ‘hazard’ by not raising the brick pavers to eliminate any height difference. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 23 February 2019.

Ruth owns a unit in a multi-story strata complex.

The apartment above Ruth is rented-out to a young couple and noise from the apartment is keeping her awake at night.

Ruth makes an application to the NSW Consumer and Administrative Tribunal (NCAT), alleging that the tenants are responsible for noise that disturbs the peaceful occupation of her unit, breaching the strata by-laws. She also claims that the unit does not have floor coverings or treated floors sufficient to prevent the transmission of such noise to other units.

The owner of the unit, Earl and the Owners Corporation are joined in the proceedings. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 16 February 2019.

Kylie commenced work as a young Police Officer in 2001 and in the course of her duties between that time and early 2008 she was exposed to numerous traumatic incidents.

By early 2008, Kylie was receiving regular medical treatment for anxiety and depression and was engaged in non-operational duties until August 2010 when unfortunately, she was not able to work at all.

Apart from Kylie’s police work, she had obtained a certificate in childcare and worked in a childcare centre, as well as obtaining a driving instructor training certificate and working as a driving instructor. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 9 February 2019.

Mario, aged 67, was working for a labour hire company as a formwork labourer on a construction site. The concrete company giving him instructions was not his employer.

Mario’s role consisted of him performing manual work which involved heavy lifting. On occasions he would lift plywood sheeting which when damp, weighed between 20 and 40 kg.

Unfortunately, on one occasion, Mario was lifting a plywood sheet in bad lighting and he lost his balance and fell. He suffered a particularly serious injury to his left knee. Mario had previously asked the concrete company to improve the lighting. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 2 February 2019.

Tragically, Scott suffers a fatal heart attack while on holiday in Southeast Asia, at the age of 53.

Many years ago, Scott made a will with the Public Trustee of Queensland. The will was “free” on the basis that the will appointed the Public Trustee as executor.

After the will was made, Scott’s parents fell into financial difficulties and to protect them, a unit was purchased in his name using funds advanced by his parents. His parents lived in the unit until his death.

The old will leaves Scott’s superannuation to his parents and the rest of his estate to his siblings. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 26 January 2019.

Mary has been in a de facto relationship for two years. She has three children to a previous relationship. Her main asset is the home in which they reside. Her eldest son does not get-on with her new partner and has been estranged from Mary for the last year.

Mary has been meaning to make a new will for many years and finally makes an appointment to see a solicitor.

The solicitor informs Mary that if she had died without making a will, given that her de facto relationship has been in existence for two years, her new partner would be entitled to the bulk of her estate and that her children would receive very little. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 19 January 2019.

Ruby makes a will leaving her whole estate to her two children, Jane and Luke.

Years later, Ruby sees a new solicitor and provides instructions to draft a new will which includes a clause that gives one of her valuable investment properties to her grandchildren.

The solicitor prepares the will and sends it to Ruby, but she is admitted to hospital shortly thereafter.

Ruby returns home from hospital but unfortunately, passes-away six years later. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 12 January 2019.

Penny commences action against Diane.

Diane is the executor of her late husband’s estate. Diane’s husband had two children to a previous relationship namely, Penny and Belinda.

The estate is small and Diane, Penny and Belinda each receive an equal share of the estate, equating to around $200,000 each. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 22 December 2018.

John and Josephine and are both retired. John receives a superannuation pension and Josephine receives an Aged Pension from Centrelink.

They own their own home as joint tenants. They each have a motor vehicle, have a joint bank account and own some jointly held shares.

They make wills leaving their whole estate to each other and if the other is not alive, then to their children equally.

Unfortunately, John passes away and Josephine consults a solicitor regarding his estate. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 15 December 2018.

Mary has five children.

Mary lives with her sons, John and Daniel.

Daniel suffers from an intellectual disability and John is his carer. Daniel has $100,000 in bank accounts that are under the control of the NSW Trustee & Guardian.

When Mary passes away at the age of 85, her will grants John and Daniel the right to reside in her home for life and leaves the rest of her estate to all of her five children equally. They each receive $250,000. Daniel’s share is to be held on trust by the executors for his benefit. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 8 December 2018.

Mary separates from her husband and moves in with her cousin, Christine.

They sign a six month lease and share the rental payments. They both receive the Newstart Allowance and share their other living expenses, including utilities, food and outgoings, to cater for their tight budget.

Mary and Christine share the domestic duties, including cooking, cleaning, shopping and the care of their animals.

Mary dies three months later at the age of 55. Mary is survived by three children, aged between 25 and 30 years. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 24 November 2018.

Mary and her son, Daniel purchase a property together as joint tenants in the early 1980s. Half the purchase price is paid by Mary and they obtain a home loan to fund the balance.

Daniel earns a small income, which with Mary’s income, allows them to service and soon pay-out the loan.

Mary’s other son, Peter is an unemployed minor. [continue reading…]

Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 17 November 2018.

Barry, Accountant, is visiting his clients when he notices that a property on the street is unoccupied and falling into disrepair. A year passes and Barry observes that nothing has changed. Barry speaks to his clients who inform him that an elderly lady had died and since then the property has been vacant.

Barry is aware that it may be possible to obtain title to the property by taking possession of it over a sufficiently long period of time. [continue reading…]

Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 10 November 2018.

Mary leaves an estate valued at $1 million.

Mary has two children, Peter and Liam.

Since Liam’s marriage in 1990, he had “little or nothing to do” with Mary and did not allow her to spend any time with his children. [continue reading…]

Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 3 November 2018.

Steven has been living with and caring for his mother, Amanda for many years.

Amanda owns a one-third share of the property and the rest of the property is owned by other family members.

Amanda’s only other child, Robin lives alone in Department of Housing accommodation.

When Amanda dies, she leaves her whole estate to Steven.

At the time of making her will, Amanda composed a letter, outlining her reasons.

Robin contests the will, seeking provision. [continue reading…]

Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 27 October 2018.

John, a single man with no children, suffers a stroke at the age of 45 and moves into his mother’s home.

John resides with his mother, Ruth for eight years before her death.

Ruth’s will allows John to continue living in the home for three years on the condition that he pays the mortgage, rates and insurance and keeps the property in reasonable repair.

After the three-year period, the will provides that the property is sold and John receives 45% of the proceeds of sale, his sister Mary receives 30% and his brother Greg receives the remaining 25%. [continue reading…]

Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 20 October 2018.

Rodney is married to his second wife, Elizabeth.

As part of his Estate planning, Rodney decides to transfer the title of his home, which was in his sole name only, into joint names with Elizabeth and to do likewise with his bank account.

He then makes a non-binding death benefit nomination whereby he nominates his estate to receive the proceeds of his substantial superannuation fund.

In his will, the superannuation benefits are to be held on trust for his three children from a former relationship, until they turn 25. [continue reading…]

Greatest Hits time again!

Here is my selection of a few of the best columns that I published in The Advocate this year.

See our website for more… [continue reading…]

Granny flat Interest arrangements between parents and their adult children are becoming increasingly popular. Such arrangements can be mutually beneficial and an excellent alternative to a retirement facility. [continue reading…]

Since the introduction of compulsory superannuation contributions by employers relating to all workers, there has been a very large increase in superannuation holdings in Australia. [continue reading…]

Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 13 October 2018.

Julie and Justin have been looking to buy their first home for some time. They missed-out on the last house when another purchaser was able to exchange contracts before them.

They have now found another home and they talk to their solicitor about the best way to secure the purchase. They are advised that they can exchange contracts subject to a five business day cooling-off period. This will allow Julie and Justin to sign the contracts immediately and conduct pest and building inspections and obtain approval of their home loan within this time. [continue reading…]

Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 6 October 2018.

Jason and Kylie were married in 2007. Kylie gave birth to their daughter in 2009 and their son in 2012.

Unfortunately, Jason and Kylie separated in 2014 and are estranged at the time of Jason’s tragic death in a motor vehicle accident in February 2016.

At the time of Jason’s death, he has a superannuation fund with a modest death benefit of $60,000.

Prior to his death, Jason purports to make a binding death benefit nomination dividing his superannuation so that upon his death, his daughter receives 25%, his son receives 25%, his mother receives 30%, his father 10% and his estranged wife, Kylie receives 10%. [continue reading…]

Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 29 September 2018.

Klever Kitchens Pty Ltd (KK) sets-up a kitchen manufacturing business at premises owned by Ethical Lessor Pty Ltd (EL) and enters into a six-year lease.

For the protection of the lessee (tenant), the legislation requires a lease of more than three years to be registered, but unfortunately on this occasion, the lease was not registered.

After two years, the lessor (landlord), EL sells the premises to another company, Quick Bucks Pty Ltd (QB) and EL puts a special condition in the contract which says ‘the purchaser acknowledges that the purchaser takes title to the property subject to the unregistered lease attached to the contract’. It is thought by EL and KK that this would protect KK from being evicted. [continue reading…]

Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 22 September 2018.

Gary sets-up a company with a view to running a business to provide first aid medical care at public events. Gary is the sole director, secretary and shareholder of the company.

The business accumulates a roster of casual employees to provide the first aid services. Each employee, most of whom are university students, are required to hold minimum certification in first aid.

After two years of operation, the Fair Work Ombudsman had received four complaints from former employees of the business, alleging they had been underpaid. The Ombudsman contacts Gary and requests evidence that he is complying with the requirements of the Modern Award and demands that any underpayments cease. [continue reading…]

Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 15 September 2018.

Sean has been engaged in Family Law litigation with his ex-wife, Justine.

Justine has made several posts on social media that have shocked and offended Sean.

Sean consults his solicitor and is advised that the posts on social media constitute “publication” under defamation law and that the posts contain “imputations” that Sean has committed acts of domestic violence and physical abuse.

Sean instructs his solicitor to commence proceedings in the District Court under the Defamation Act. [continue reading…]

Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 8 September 2018.

Anna and Joel wish to purchase a unit. They are advised to ensure that they have unconditional loan approval from their bank, in writing, before they exchange contracts.

They are also advised to obtain a strata records inspection report. When they receive the report, two things are of particular interest. Firstly, there are records indicating that there has been a problem with a tenant in one of the units relating to loud music and alleged drug use. Fortunately, the records also indicate that the tenant has since been evicted and there are no other incidents recorded in the past two years. [continue reading…]

Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 1 September 2018.

Robert dies leaving few assets other than a substantial amount in his superannuation fund which has death benefit insurance of $600,000.

Robert had prepared a will leaving all of his superannuation fund to one of his sons, Luke.  He left nothing to his son, Jason who he was estranged from as a result of continued abuse and assaults from Jason over a number of years.

Robert had also made a non-binding death benefit nomination for his superannuation funds to be paid to his legal personal representative with the intention that it is paid to his Estate and distributed in accordance with his will. [continue reading…]

Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 25 August 2018.

Nina dies at the age of 92 leaving no biological children but leaving two adopted children, Jim and Jane.

Nina adopted Jim and Jane shortly after their birth and they lived together during the whole of their childhood.

Under her will, Nina leaves Jane 15% of her estate, Jim 10% and the rest to Jane and Jim’s children.

The estate is worth $600,000. [continue reading…]

Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 18 August 2018.

Helen met Tony and Tina 30 years ago.

When Helen’s husband passes away in 2010, the friendship between Helen, Tony and Tina becomes closer.

Tony and Tina tell Helen that they would like to purchase a property. They are aware that Helen is relatively wealthy. Helen says that she is happy to assist and draws them a cheque in the sum of $500,000.

Helen sends Tony and Tina flowers when they move-in to the property. [continue reading…]