Who will look after my children if I die? Why every parent needs a Will.

Have you ever thought about who would look after your children if you die?

If you have a properly drafted Will and one that nominates a testamentary guardian for your children there is no need to read much further, but please take some time to review your Will if it is more than 3 years old or your circumstances have changed since drafting it.

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2227 Hits

Avoid legal limbo - create a valid will

Avoid legal limbo - create a valid will

The Public Trustee has revealed that 50 per cent of Western Australians over 40 do not have a valid will. With litigation regarding wills increasing in Australia, it’s become more important than ever to create a valid will using a suitably qualified, experienced solicitor.

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  1450 Hits
1450 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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1768 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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2130 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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2693 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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2812 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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3175 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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3211 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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1558 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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3135 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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1599 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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3339 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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3597 Hits

The Family Court - A System in Crisis

One of the most frequently asked questions by people who have ever filed anything at the Family Court is ‘what’s the hold up?’.

The Family Court process is a slow one, and there are delays across the board - from the ‘simpler’ matters such as divorces, to litigated matters that are heading towards a trial. Divorce hearings currently have a wait-time of about three months. Similarly, it is not uncommon for litigated matters to run for 18 months to 2 years before the trial itself. Tack on another 6 months for the decision to be handed down once the trial has been completed, and you can understand the frustration, with people often feeling like their lives are ‘on hold’ pending the final outcome.

So, what’s the hold up?

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3878 Hits

One Day…Every Day

One Day…Every Day

By the time this blog has been posted “on the line” (thank you Vince Vaughan) the 25th of November will have well and truly been gone.

Why is that day so important you ask? It’s White Ribbon Day, the National Day to stop Men’s Violence against Women.

You know, when I sit back and think about this I’m almost dumbfounded. We’re about to roll into 2016 and Domestic Violence amongst both women and men continues to be an issue. Let’s see, we’ve legalised gay marriage in some countries, equal pay for men and women is being championed by many, women are being considered (and are given) jobs which were only once reserved for men, and for God’s sake they have even legalised marijuana in 2 states in America.

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5131 Hits

Expert Evidence - You’ve got an opinion? Are you sure about that?

You’ve got an opinion? Are you sure about that?

Are you an expert?

If I had a dollar for every time that someone told us here at Butlers, “I think my ex has bi-polar” or “He definitely has narcissistic tendencies. I Googled it and he absolutely fits the description” or “I am telling you, she has OCD. I am sure of it. She just hasn’t been diagnosed yet” or something along those lines, I probably wouldn’t need to be working so much.

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  4825 Hits
4825 Hits

Does domestic violence matter in a property settlement case?

 

Does domestic violence make a difference in a property settlement case?

In September this year, our Prime Minister, Malcom Turnbull announced a $41 million pledge to tackle domestic violence in Australia. What a great step forward. Thanks, Malcom. The issue of domestic violence in Australia is finally getting some much needed attention and hopefully our Prime Minister’s pledge will go a long way towards advising and assisting victims, and educating the nation to the point where DV becomes “un-Australian”.

What about domestic violence in a family law context though?

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4611 Hits

Let’s get digital - who owns what?

Let’s get digital

Today, I went onto a social media website, and saw a photo I just had to share. I took a screen cap of the photo, and texted it straight on to a friend.

Sound familiar?

The technology that’s become a magical part of our daily routines didn’t even register in Marty McFly’s wildest dreams. If you had told the pre-teen me that one day I’d be able to take a photo, view it, and share it with 500-odd “friends” all within about two and a half minutes, or that I could spend my days doing nothing but watching videos of cats on my phone, I probably would’ve laughed in your face – and not just because I don’t think anyone actually has 500 friends. But, somehow, this is exactly the crazy world in which we live.

 

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5951 Hits

Viva Voce is not a Ricky Martin song

Viva Voce is not a Ricky Martin song

A wise man once said to me that the best lawyers can take the most incredibly complex legal issues and explain them in simple, understandable terms. There’s a lot to be said for that. It’s not necessarily about breaking it down for other people for fear of a lack of understanding – it goes to the understanding and skill of the lawyer, which ultimately reduces the magnitude of the issues, paving the way to resolution.

So what of these legal maxims and jargon which people love to throw about from time to time? Prima facie this, viva voce that… Or my personal favourite – mens rea. Am I talking about an element of a crime, or someone’s backside?

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3654 Hits

The Conference

The Conference

While the title sounds like something John Grisham would write, I can assure it is nothing of the sort.

In fact, I will tell you right now, if you’re expecting intriguing characters with deep rooted unresolved issues, or cliff hangers, you won’t find it here.

The Conference I’m referring to is the Conciliation Conference, which is an initiative of the Family Court as a form of Alternate Dispute Resolution.

I think every now and then it’s important that people are aware of the various processes and steps in the Family Law process.

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3792 Hits