Butlers News

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Deadline looming - Orders regarding children’s living arrangements for Christmas!

Deadline - Did you know that the Family Court have a deadline for Orders regarding children’s living arrangements for Christmas?

For most every family, Christmas is a happy but also stressful time. Whether it is ensuring there are no gift double-ups, Santa’s true identity remains undiscovered, or that there are no pistachios in the salad as Aunty Laura’s allergic, chaos is a part and parcel of the end of the year.

When mum and dad are no longer together the co-ordination and logistics are even more challenging. And that’s when they are getting along.

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1950 Hits

iPhone 10 yes please....get your priorities right!

In a recent Supreme Court Decision, Kenneth Martin J made the remark that society as a whole simply do not appreciate the importance of having a valid, up to date Will.
He stated that:
“Wider public educational efforts should be made to advance the general state of knowledge of the community on these matters, in my respectful view. This is an age where people outlay significant amounts on a regular basis to update their phones - so they are equipped with the latest technology. But a small outlay to correctly execute a will to secure potential benefits for loved ones and dependants should be an elevated priority. A person's last will is perhaps the most important document that they will ever sign in their lifetime. The long-term worth of leaving a valid will always exceeds the cost of a new electronic device.”

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  1322 Hits
1322 Hits

Why bother with a Financial Agreement?

Picture this…. you’re invited to speak on a local radio station about nuptial agreements following a recent government paper seeking to establish the key principals of such agreements for, not only the legal profession, but also the public. This is your first radio interview and so, you spend the evening ensuring you are familiar with the paper and the proposed plans. You’re introduced to the audience, and during that introduction the presenter summarises almost everything you read the night before. His first question to you…..”these agreements….you’re married….do you have one?”.

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  1820 Hits
1820 Hits

SPOILER ALERT - The Bachelor - who will get the ring?

SPOILER ALERT - The Bachelor - who will get the ring?

And so, another season of “The Bachelor” is in full swing, a sign of hope to anyone who’s single that they too could find love, so long as their willing to go on national television and date 22 people at the same time? Or maybe they’d rather be one of the lovely ladies playing house with their 21 competitors. Either way, people across Australia will be watching as all 22 girls fall for Matty J, hoping that a shiny rock awaits the lucky lady who wins his heart.  

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1855 Hits

I’ve separated from my partner – is my Will still valid? Can I revoke it?

I’ve separated from my partner – is my Will still valid? Can I revoke it?

When something difficult or unexpected happens in life, it can be hard to wrap your mind around anything other than the distress or shock you’re feeling. People often come to us for advice after separating from their husband, wife or partner and one thing we always ask is whether they have considered the consequences of their separation on their Will.

We understand that discussing your death is hardly a desirable conversation, especially when you’re going through a separation, but we have also seen the impact that taking no action can have on a person’s family and friends.

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1796 Hits

Fixing a broken system – introducing the Family Violence Restraining Order (“FVRO”)

Fixing a broken system – introducing the Family Violence Restraining Order (“FVRO”)

Most of us take for granted the safe, nurturing environment we like to call home. For an increasing number of Australians, this is not the case and they suffer the enduring trauma of domestic violence or abuse.

Restraining orders give victims of violence a tool to keep their abusers away or at least offer them a little more protection by police if they come close. In July 2013, then Attorney General, the Hon Michael Mischin MLC referenced a review by the Law Reform Commission to the Restraining Orders Act 1997 (WA). He recognised the need for separate legislation that only deals with family and domestic violence.

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1901 Hits

Drugs, Family Law and the increasing responsibility on Grandparents

Drugs, Family Law and the ever-increasing responsibility on Grandparents

First, let’s talk about ordinary Family Law circumstances, with a loving set of parents, who simply didn’t make it as a couple. Grandparents do not have an automatic right to see their grandchildren. However, the grandchildren have a right to continue to spend time with their grandparents with whom they are close. In short, if it’s in the best interests of the child that they continue to have a relationship with a grandparent with whom they already have a great relationship, then the Court will take a long hard look at that.

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2033 Hits

Surveillance vs Snooping - The Fine Line...

Surveillance vs Snooping

Going through a separation has a way of making even the most private and intimate of affairs seem all of a sudden very public. Unfortunately, this exposure of personal details, coupled with an angry ex, can result in uncovering more than a few skeletons in the closet.

There are different ways of accessing private information and there are drastic differences between surveillance and snooping – one being legal, and one not. 

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2097 Hits

When a loved one dies...

When a loved one dies, there are a thousand questions running through everyone’s mind.

Did they have a Will? What funeral arrangements should be made? Who should we notify?

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  2628 Hits
2628 Hits

Deadline - Orders regarding Children's living arrangements for Christmas!

Deadline - Orders regarding children’s living arrangements for Christmas

For most every family, Christmas is a happy but also stressful time. Whether it is ensuring there are no gift double-ups, Santa’s true identity remains undiscovered, or that there are no pistachios in the salad as Aunty Laura’s allergic, chaos is a part and parcel of the end of the year.

When mum and dad are no longer together the co-ordination and logistics are even more challenging. And that’s when they are getting along.

When parents are embroiled in a Family Court dispute Christmas, New Year’s Eve and that lengthy summer school holiday period are often an issue which cannot be resolved by discussion alone.

Because so many estranged couples seek the assistance of the Court to determine how their children will celebrate the holidays and spend their school break the Court has strict rules regarding such applications. This year all applications seeking orders regarding children’s living arrangements for the 2016/2017 Christmas school holiday period must be filed before 4pm on Friday 11 November 2016.

The Family Law Team at Butlers are experienced in preparing and filing such applications and ready to help. Don’t leave it too late, contact us now!

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2216 Hits

Butlers awarded Doyle's Guide 2016

Doyle’s Guide is considered a prestigious recognition in the Legal Industry as an independent guide to the legal profession in Australia that awards the best lawyers, barristers and law firms in the industry.  Within each area of law, and for each State, rankings are allocated, identifying pre-eminent, leading and recommended practitioners.  Further, the guide recognises law firms specialising in specific areas of law.  What makes the guide special is the process by which these rankings are decided.   Feedback is gained by counsel and peers practising in Australia, who identify firms and individuals through surveys, telephone and face to face interviews.

Butlers are proud to be recognised in Doyle's Guide for Leading Family & Divorce Law Firms – Western Australia, 2016 and John Butler, personally in Leading Family & Divorce Lawyers – Western Australia, 2016. 

We look forward to continuing to offer our Clients exceptional service in all areas of Family Law and Wills & Estate Planning in Western Australia.

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2773 Hits

A rose by any other name...

Ask anyone and they will tell you that now is the time for girls to run the world. For the first time ever, we’re staring down the barrel of women running the USA and the United Kingdom at the same time. Women have never been more powerful. Or have they?

We all know that it’s a well-accepted tradition in Australia that when a woman marries, she “assumes” the surname of the lucky man who bagged her. This is a tradition that stems all the way back to a time when a woman “belonged” to her husband, and her husband wanted everyone to know it.

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2885 Hits

Leaving on a jet plane….don’t know if they’ll be back again…..

Leaving on a jet plane….don’t know if they’ll be back again…..

The notion of a stranger dragging your child from you off the street is a scary thought for any parent; but what if the person taking your child is their mother or father? Many separated parents wouldn’t ever consider the idea that their former spouse would take their child and leave the country; sadly this isn’t the case for all and many parents live in fear of this exact thing happening every day. I cannot count the number of times I have had to rush down to Court on a Friday afternoon to get an Injunction preventing a parent from removing a child from the country……it’s a lot.

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  3714 Hits
3714 Hits

The real cost of DIY Wills

There are some things in life that are just so much better when they’re homemade. Like Mum’s secret recipe sponge cake with fresh strawberries. A hand knitted beanie. Or even a handmade birthday card from your 5 year old niece. But then there are some things that are just better left to the professionals.

Why is it that we’re more willing to let the experts take the reins on some things than others? I wouldn’t try to replace the chipped windscreen in my car, because I don’t have the tools or the skills to do it right – and if I don’t get it right the risk is that I will hurt myself (or even worse, someone else) and end up costing myself a lot more money than I would have forked out if I’d just left the job to the right people in the first place.

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  3251 Hits
3251 Hits

Will your son/daughter in-law take your family legacy?

Most of us are at least vaguely familiar with the concept of pre-nups, with American celebrity culture it is all too common to hear about a couple splitting up and Popstar X being crazy for not having one, or about how B-list actor Y is applying to a Court to overturn the pre-nup.

In Australia our Family Law Act allows for parties to enter into their own private agreements about asset division if a marriage or relationship ends, called Financial Agreements. Couples can enter into these Agreements before marrying or entering into a de facto relationship, during the marriage or relationship and even once it has come to an end. So pre-nups, post-nups and just plain nups perhaps?

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3285 Hits

To describe or not to describe?

Whilst the plaintiff questioned whether the gift to Katherine was dependant or conditional on her being the de facto of the deceased at the date of his death, one of the defendants argued that the phrase, “my de facto wife” was merely descriptive and should be ignored.

The Court held that the Will is said to speak from the date of death. The Court reasoned that because Katherine was no longer in a de facto relationship with the deceased at the date of death, the intended disposition of his estate to Katherine should fail.

So, what do we, as practitioners, consider when drafting Wills for our clients? Are we doing our clients a disservice by describing the relationship of a beneficiary to the client without more? For instance, if a bequest is made to a friend,Joe Blow, of the client, and at the time of death, Joe Blow is no longer a friend of the client, then would the gift to the estranged friend fail? Was it the client’s intent that Joe Blow remained his friend in order to receive the gift? And more importantly, how could one prove that the relationship was no longer amicable?

I suppose if the description of a relationship to the client is just that…a description, then a bequest should remain valid. On the other hand, if it is the intention of the client to only benefit a particular person if he/she remains in the relationship described, then probably the best practice is to clearly state such an intention in the Will as a condition precedent to receiving the gift.

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1626 Hits

Choosing the Right Executor?

There is no single right or wrong, one-size-fits-all recommendation for everyone, but there are some useful questions you can ask yourself when thinking about who would be the right Executor for your Estate. Some of these questions are:

Whom do I trust?Who would be equipped to make sensible, rational and fair decisions after my death?Who would be willing and able to take on the job, and could stand up to any pressure from my beneficiaries?Where does this person live, and how difficult would it be for them to act in the role?How old is this person, and are they likely to survive me or to be fit enough to do whatever is required? Has this person ever been bankrupt, or do they have a criminal background?Does this person have a parent or spouse (or anyone else in their life) who could influence them to make decisions in a certain way in the course of administering my Estate? How “messy” or complicated is the administration of my Estate likely to be?Should I appoint more than one person? If I do this, what do I want to happen if these people don’t get along, or can’t agree on something?Should I nominate a professional person or trustee company, knowing that this might come at a cost to my Estate, and might be disempowering for the loved ones I leave behind? Should I nominate a substitute Executor in the event that my first choice is unable or unwilling to act as my Executor?

If you anticipate that there is the potential for a claim against your Estate by a disgruntled beneficiary, you might not want to nominate that particular person (or any other beneficiary named in your Will) as your Executor. For example, if you want to leave your entire Estate to charity, rather than to your children, you might think twice about appointing your child as your Executor.

Every person (and every Estate) is different, so of course this cannot be an exhaustive list of things to think about when choosing your Executor. We encourage you to turn your mind to what is important to you, and what you wish for your loved ones after you’re gone.

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3253 Hits

Life after Death?

But it was established to the satisfaction of the Court that the 2009 Will had been signed at a time when the testator had already lost testamentary capacity due to certain delusional beliefs which she held. Accordingly, the Court decided the 2009 Will had no effect. That meant that the revocation of the 2006 Will was also ineffective. So the 2006 Will was rescued from its dusty grave, and was duly admitted to Probate. The case also demonstrates that in deciding which Will is valid, the Court makes up its own mind based on the evidence before it and does not simply follow any agreement reached by the parties.

In Williams v Schwarzback the question of which Will was valid was initially hotly contested; at a mediation the parties agreed that the 2006 was the valid Will. But the Court only decided in favour of the 2006 Will when it was satisfied that the 2009 Will was invalid. It did not simply rubber stamp the agreement of the parties, who had to put the necessary evidence of the testator’s delusions before the Court. This is an illustration of the rule that in contested Probate disputes one cannot simply get judgment by consent, even if the parties ultimately settle their differences.

Finally, it is good practice for testators, when they sign a Will, to write ‘revoked by Will dated….’ across the earlier Will; this practice helps to minimise confusion as to the status of the earlier Will. If the later Will is found to be invalid, the revocation is also invalid and the earlier Will is available to be admitted to Probate. The earlier Will may also be relevant if Family Provision proceedings are brought, even if the later Will is valid. So, as you can appreciate, at least in Probate matters, there can be life after death.

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1676 Hits

Should Accountants be drafting Wills?

Should Accountants be Drafting Wills?

What do you do when a client asks you to draft his/her Will?

If you’re an Accountant, Financial Planner, or a professional other than a Legal Practitioner, have you ever been asked to draft a Will for your client?

Whilst the temptation to be holistic in your services to a client is understandable, this article will offer some guidance, and identify the pitfalls of engaging in a legal practice which could contravene the requirements under the Legal Practice Act 2008 (“the Act”).

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3466 Hits

The law doesn't care if you're separated but not yet divorced... How your ex can end up with your money after you're long gone..

 

A relationship breakdown is one of the most traumatic things you’ll ever have to deal with in your life. Life as you know it is tossed completely upside down, and not only do you have to grieve the loss of the relationship, but you probably have to move, open new bank accounts, learn where everything is in a new supermarket, and sometimes even stop seeing some of your friends because your former partner got them in the split. While you’re sorting through 3 years’ worth of bank statements and trying to get your ex to agree that the kids can stay with you until 2.00pm on Christmas Day instead of 1.00pm, it might not feel like there’s much time to get your head around anything else.

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3681 Hits