NOVEMBER 2018 LEGAL UPDATE: MOTOR VEHICLE ACCIDENTS
Lisa Phillips
This month, we’re looking at how we can protect your rights in motor vehicle accidents.
Check out our latest Legal Update on our YouTube channel here:
The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss the content of this communication and how it applies to your situation, please feel free to contact us.
NOVEMBER 2018 LEGAL UPDATE: WILLS: WHAT HAPPENS WHEN YOU HAVE ASSETS LOCATED IN MULTIPLE COUNTRIES?
Ashlea Mckenzie
Each country has their own laws relating to creation of wills and the distributions of deceased estates. When assets are held in different countries, care must be taken to meet the requirements which will allow an estate to be administered in each country.
Generally, there are two methods of creating wills which are effective for assets in different countries:
An International Will
Concurrent Wills
1. INTERNATIONAL WILLS
Australia, and many other countries, are signatory to the Convention Providing a Uniform Law of an International Will 1973 which means a will made in accordance with the requirements of the Convention will be recognised in countries that are signatory to the Convention. The requirements of a will under the Convention are substantially the same as the requirements in Australia, however differing in that the will must be witnessed by three people:
Two witnesses who must sign the will; and a legal practitioner or a notary public who must sign both the will and a certificate in the form required by the Convention.
Despite an International Will being accepted in other countries, the will may still not be appropriate, or may not be clearly interpreted by the foreign country’s court, particularly where there are substantial differences in law or language. This difficulty can be resolves through concurrent wills.
2. CONCURRENT WILLS
Concurrent wills are where the will-maker prepares separate wills for each country where the respective assets are owned. It is possible to make a will which will only apply to specific assets, or assets in a specific country. It is possible for a number of concurrent wills to be created for different countries. Usually, one of the wills will relate to all of the property of the will-maker, wherever property is situated, other than property in each jurisdiction for which another concurrent will is made, so that if property is located in other countries that are not covered by a specific will, the general will should apply to that property.
A great advantage of concurrent wills rather than one will (whether or not this is signed as an international will) is that application may be made for probate of each will in the country to which it applies. Where there is only one will, it is necessary for an application for probate to be made in one country and then for the probate to be resealed in each other country in which the will is required to be proven. Our experience has proven this to be a time consuming and complex process, which takes longer than a separate application for probate for separate concurrent wills.
If concurrent wills are made, very great care must be taken to ensure that these are each properly made and effective for the jurisdictions to which they apply. Usually, the creation of a new will revokes former wills that are made by the will-maker, so when concurrent wills are made it must be clear that each will does not revoke another concurrent will. It is particularly important to keep this in mind if the wills are made in different countries with the assistance of respective local lawyers, and our experience has shown this process happens most smoothly when there is a central co-ordinating lawyer.
Making concurrent wills may seem a complicated process, but it may be a very worthwhile process offering the benefits of faster distribution of the estate, which proves very important where there are tax concessions applies to assets of deceased estates which only exist for a short time after the death of the will-maker. Concurrent wills may avoid many difficulties and unintended consequences for the distribution of the estate of the will-maker in different countries and thereby avoid or reduce costs which would otherwise apply.
Please feel free to get in touch with our experienced team if you feel as though we can assist in drafting or updating your will.
The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss the content of this communication and how it applies to your situation, please feel free to contact us.
NOVEMBER 2018 LEGAL UPDATE: PROTECTING YOUR RIGHTS: INITIATING LEGAL ACTION
Ashlea Mckenzie
Legal disputes create a lot of stress which can be eased by working with the right lawyer.
A legal dispute is a serious process governed by strict and complex rules of Court which provide processes, forms and deadlines. Failing to meet these rules can compromise your legal position and may lead to an unfavourable outcome in what is otherwise a strong case.
In a commercial or civil dispute we will present your side of the case in a way that maximises the chance of a winning. We have extensive experience in solving issues for clients in the most efficient manner possible, and provide the steps involved in resolving a dispute to assist in putting your mind at ease through a stressful time:
1. LETTER OF ADVICE
We will first meet with you to gain an understanding of your situation and preferred outcome. We will create a Letter of Advice for you which will outline your legal position and prospects of success.
2. LETTER OF DEMAND
Once we have advised you on the legal options available to you, the next step to a solution is to issue a Letter of Demand. These kinds of early attempts to resolve disputes are required by the Court as a means to help keep legal costs of all parties to a minimum, and without the need to engage in the rigid and stressful experience of going to Court. Parties may then negotiate to reach a mutually beneficial resolution
3. FORMAL COURT PROCEEDINGS
If out of Court resolution does not seem possible, the matter will need to be taken to Court. Depending on the nature of your matter, your claim may be heard by the Federal Court, Queensland Supreme Court, the District Court or Magistrates Court. There are many steps in formal legal proceedings which must be closely followed, requiring skilled and experienced lawyers to navigate the process and protect your interests. These steps include filing an initial Statement of Claim, often followed by a series of applications, disclosure of documents between the parties, and interrogatories which must be managed efficiently and with precision to ensure a timely and cost effective outcome. Non-compliance with these rules of Court may amount to breach which can have consequences as severe as losing your right to the legal claim.
As you can see, all three stages of the development of a claim require guidance by experienced lawyers who can navigate you through the process and achieve your desired outcome. The team at Goodman Lawyers are experienced in pre-court resolution processes of mediation, conciliation and arbitration and litigation in Court. We will guide you through the matter providing you with confidence that your rights are being protected by competent and professional lawyers.
The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss the content of this communication and how it applies to your situation, please feel free to contact us.
NOVEMBER 2018 LEGAL UPDATE: HAVE YOU BEEN ASKED TO SIGN A DIRECTOR GUARANTEE?
Ashlea Mckenzie
Requests made to company directors by financiers, suppliers, or real estate agents to sign a personal guarantee against a company’s liabilities, often called Director Guarantees, are increasingly common. However, these guarantees can carve out protections offered by establishing a limited liability company, exposing the director to significant risk if the company finds itself in financial trouble.
1. PERSONAL ASSETS
A company director who signs a Director Guarantee gives a personal guarantee against the company’s liabilities. If you have structured your business as a company, one of your main motivating factors was likely the financial protection an incorporated company offers to the owner, which shields your own personal assets in the event of insolvency. However, Directors Guarantees undo this shield and enable creditors access to your personal wealth in insolvency proceedings. Directors Guarantees are used frequently where a suppliers of credit assess that a company itself does not have enough security in terms of assets, meaning directors of small or start-up businesses are very frequently requested to undertake a Director’s Guarantee.
2. LEAVING COMPANY
A second, and more complicated issue arises when a director leaves a company. Unfortunately, resignation and notice to ASIC of the removal of a director has no effect on any Director’s Guarantee entered. The guarantee remains enforceable against any departed director, as the personal guarantee has no connection with a guarantor’s relationship with the company. To avoid a situation where you may be pursued for the enforcement of director’s guarantees there are careful steps you should take upon entering a personal guarantee, and upon departure of a directorship. Guarantee removal is a complex process which requires legal advice for a smooth transition.
Although we suggest not to enter a Director’s Guarantee, we understand there are situations where they cannot be avoided given the business environment in Australia at the moment. When you must enter a Director’s Guarantee it is important to negotiate the guarantee, which can provide important protection such as limiting the guarantee, so it only applies while you are a director the company, capping the amount of the guarantee, limiting the guarantee time period. We will be more than happy to apply our experience in this area to ensure you are as secured as possible.
The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss the content of this communication and how it applies to your situation, please feel free to contact us.