Nothing In Life Is More Certain Than Change

Nothing In Life Is More Certain Than Change

There are but two certainties in life – death and taxes. This certainty is what drives the estate planning and administration business of financial planners and lawyers alike. There is, however, a third certainty which defines life and that is change.

No matter how meticulously we plan for the future and how carefully we structure transactions or estate plans things can change overnight and with those changes undo what we have so carefully planned. Our best laid plans then, are apt to go astray, which is why we must remain sensitive and reactive to changes in the regulatory environment in which we operate. This is particularly true in the areas of estate planning and administration.

Under Pressure – the perils of premature distribution

Under Pressure – the perils of premature distribution

What happens when you are named as an executor and trustee under a will? Whilst not so in 100% of cases, it is very uncommon for a person (or persons) not to be named as an executor and also as a trustee under a will. Both jobs often merge into one but they are different and the differences are important.

The role of executor is to ensure that the property of the deceased is secured and “gotten in“. The executor has a year (called the executors year) to bring all of the property into the estate. This usually means transferring the property into the name of the executor, attending to the payment of expenses arising as a consequence of the holding of the property, attending to, arranging and paying for the funerary expenses of the deceased and paying any debts left by the deceased. The trustee’s job is to make sure that what is left on trust under the will is dealt with in accordance with the trusts established under the will and according to law. In this post we deal with the role of executors and administrators rather than that of trustees.

Money makes the world go round but the right paperwork smooths the way

Money makes the world go round but the right paperwork smooths the way

The song says that money makes the world go around and that may well be the case (although the argument for coffee is a persuasive one) but without the right paperwork the money can stop moving and the world can stop turning at least for a time while everyone argues over what should or shouldn’t or can or can’t happen next and into the future.

Some paperwork is mandatory, like filing your taxes and other paperwork is optional but can avoid your world from grinding to a halt by helping the money move as it should and avoiding the costly debates about what should and shouldn’t and can and can’t happen next and into the future.

There are those who benefit from the chaos caused by a lack of appropriate and up to date paperwork. Those individuals are known as lawyers and they charge fees for helping the mess to get sorted to varying degrees of sorted-ness and satisfaction. So profitable is the sorting out of these messes that an entire industry has grown up around doing so. The Legal Industry (or profession as those who work in it prefer to call it).

So, what sorts of optional paperwork should you have in place and up to date? Well that really depends on your circumstances. Everyone’s path in life is slightly different to that of everyone else and the sort of path you tread will determine what documentation is desirable to have around you to smooth that journey.

Time, time, time is NOT on your side.

Time, time, time is NOT on your side.

When a debtor is served with a bankruptcy notice there are only a limited number of things that the debtor can do. Those courses of action are spelled out on the face of the notice itself and they are:

  1. pay, compound or secure the debt to the creditors satisfaction;
  2. apply to have the bankruptcy notice set aside or for time to comply with it to be extended; or
  3. commit the Act of Bankruptcy which will then allow the creditor to take the next step in the bankruptcy process which is to bring the Creditor’s Petition based on the Act of Bankruptcy.

If payment isn’t an option and the debtor does not wish to allow the creditor to rely on non-compliance with the bankruptcy notice to establish an act of bankruptcy upon which the creditor can rely the setting aside a bankruptcy notice is often the only option left and the grounds for doing that are limited but what about extending time to comply?

Make Me An Offer. No! An Offer!

Make Me An Offer.  No! An Offer!

When involved in litigation it is important to know at which point to stop fighting, shake hands and call it a day.  That is where the offer to settle comes into its own.  The offer to settle is found in the rules of all civil courts and the inability to see the writing on the wall writ large in the form of a detailed and understandable offer has significant costs consequences for those unfortunate or ill advised enough to imprudently reject such offers.

That, at least is the position for the carefully thought out, understandable and commercial offer which represents a genuine compromise of the rights of the offeror. There is of course another kind of “offer” which tends to be less helpful in motivating the offeree to a detailed analysis of their position and the likelihood of success of their case.  This is the demand dressed up as an offer.

Costs and the Self Represented Lawyer

Costs and the Self Represented Lawyer

As a general Rule the self represented litigant is unable to claim professional costs, that is costs representing the value of their time, as against the opposing party even if they win their case in circumstances where they would be entitled to an award of indemnity costs if represented.

Implied Term of Trust & Confidence Part of Every Employment Relationship

Implied Term of Trust & Confidence Part of Every Employment Relationship

On 6 August 2013 the Full Court of the Federal Court of Australia handed down its decision in Commonwealth Bank of Australia v Barker confirming the decision of Besanko J at first instance . In so doing the Full Court, albeit 2-1 in a split decision, found that in each contract of employment there is to be found an implied term of trust and confidence. Trust and confidence. Sounds good. Trust is fabulous, we like trust. Confidence is great, we like that too. But what does it mean?

In lay terms it simply means that it is automatically implied into an employment contract (however described) that employers and employees will not, without reasonable cause, conduct themselves in a manner likely to destroy or seriously injure the relationship of confidence and trust which necessarily exists between the employer and employee for the employment relationship to work properly. This appears to be just a judicial statement of good common sense but is it?