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Derek Legal Blog

Author: Derek Legal

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Derek Legal Blog

Number of blogs returned: 1 to 5 records of 18

What Happens to Windfalls in Family Law Property Disputes

Whilst the odds of winning Gold Lotto are in the tens of millions to one, it happens that the Family Court has been called on more than once to decide what happens with the windfall. In the Marriage of Zyk (1995) 19 Fam LR 797 involving a win which occurred two years after the parties had married, the Court held that it didn’t matter which party purchased the ticket at a particular time. The determining factor was on the basis of contribution so that if the parties were contributing their income towards a joint partnership constituted by the marriage, the purchase of the ticket no matter which party purchased it would be treated the same way. Similarly, if the parties have adopted the traditional role of the husband working and the wife being a homemaker and mother, the wife would have contributed to the ticket by her contribution that way.

In another case, the husband won five million dollars a year after the party separated. The wife brought an application for a Property Adjustment Order two years after the husband had won the five million. She was awarded 15 percent of the lottery win on the basis that the Court held that there was nothing to prevent a party’s contribution made during the marriage being satisfied out of property not existing at the time the contributions in question were made. The husband received the 85 percent on the basis that the lottery ticket belonged to him.

In another case the husband had won the lottery prior to marriage. In that case the Court held, in accordance with the Common Law, the title to the lottery winning vested in the persons who name the ticket was issued in and therefore that was his contribution in the wash up of the parties’ property pool.

It follows therefore that the only time a windfall will be treated as a sole contribution of a party to the marriage is if it occurred prior to marriage.

Posted in: Derek Legal Blog at 23 May 18

A Loved One’s Died and You Can’t Find Their Will

The Succession Acts 1981 provides for the formalities of a will and Section 18 can provide a relief when those formalities have not been followed but you have the will. What happens when you know there’s a will, but you can’t find it. There is a presumption if a will cannot be found that the Testator has destroyed it as early as 1836 the Courts have said, “The Rule of Law of evidence of this subject has established by a course of decisions in the Ecclesiastical Court, is this: that if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself and that presumption must have effect, unless there is sufficient evidence to repel it. Courts have accepted whole evidence on the point if a copy has been found, it can be admitted to probate providing the following can be shown:

(a)    That there was a will;

(b)    That the document revoked all previous wills;

(c)     That the presumption that when a will has not been produced it has been destroyed and thus revoked must be overcome;

(d)    The terms of the will;

(e)    The will was duly executed.

If you have a copy of the will, it is a matter of giving evidence as to its execution and the circumstances around the original going missing. For instance, the deceased may have shifted house and documents went missing during the removal. In one case, where a copy of the will was admitted to probate it would have shown that the original will was last in possession of some solicitors and could not be found.

Posted in: Derek Legal Blog at 16 May 18

Problems With Your Body Corporate?

When you are wanting something done in your building, for instance the refurbishment of the foyer and the committee of the Body Corporate does not want to do that, you still have a remedy. Whilst there are a number of ways of calling an Extraordinary General Meeting, from a lot owners point of view, the only way to do it is by a written request signed by at least 25% of lot owners or the representatives.

The notice requesting the Extraordinary General Meeting must be given to the Body Corporate Secretary or in the Secretary’s absence the Chairperson. There is a deeming provision that the Secretary is absent if there is no response within seven days. Either the Secretary or the Chairperson, depending upon who received the request, must call an Extraordinary General Meeting within 14 days and the meeting itself must be held within six weeks of receipt of the notice.

Each lot owner must be given written notice of the Extraordinary General Meeting at least 21 days before the meeting. That notice must include the time and place of the meeting, the agenda, a proxy form and a company nominee form if the owner is a company promoting paper for all motions not to be decided by secret ballot. Information’s to be decided by the secret ballot, a secret voting paper, an envelope marked with secret voting paper and a separate particulars tab or envelope.

To have your particular matter dealt with, you need a suitably worded motion to be put to the meeting, for instance “That the quote by XYZ Pty Ltd dated Wednesday 2nd May 2018 for the refurbishment of the foyer of the building be accepted.” The motion needs a majority of votes to pass but given to call an Extraordinary General Meeting you need 25% of lot owners, one would have thought there would be reasonable prospects of getting the motion through.

Posted in: Derek Legal Blog at 09 May 18

So, You’ve Been Left Out of the Will?

The person who is disappointed because they are not being made a beneficiary under a will or did not receive a sufficient share of the estate under the will, can have a remedy because of Chapter 13 Family Provisions of the Succession Act 1981.

The Court can decide whether or not proper maintenance and support has been left to the disappointed beneficiary under the will. The classes of people who can bring the application are limited by the Succession Act to a spouse, a child or a dependant. A spouse or a child can bring the claim whether or not they were dependent on the deceased, but a dependant must show dependency.

Defactos come within the legislative scheme.

The most used statement for the test of proper maintenance and support come from the Privy Council in Bosch v Perpetual Trustee Co (Ltd) ([1938)] AC 463 at 478. “The act is designed to enforce the moral obligation of the testator to use his testamentary powers for the purpose of making an adequate provision after his death for the support of his wife and children (nowadays that includes defactos and dependants) and in regard to his means, to the means and deserts of the several claimants, and the relative urgency of the various moral claims upon his bounty. The provision which the court may make in default of testamentary on vision, is that which a just and wise father would have thought it his moral duty to make the interest of his widow and children had he has been fully aware of all the relevant circumstances. The amount to be provided is not to be mentioned solely by the need of maintenance. It would be so if the court were concerned merely with the adequacy. But the court has to consider what is proper maintenance, and therefore, property left by the testator has to be taken into consideration. Where, therefore, the estate is a large one, the court will be justified in such a case in making provision to meet contingencies that might have to be disregarded where the estate is small.”

The application of the court must be made within nine months of the date of the death and in Queensland the rights given by the Succession Act 1981 cannot be contracted out of.

Posted in: Derek Legal Blog at 11 April 18

Road Rules

With the Commonwealth Games about to start and an increased police presence, it’s time to brush up on your road rules. A useful summary of the rules is found at www.qld.gov.au/transport/safety/rules/road/left. On the website, keeping left and overtaking is dealt with this way: -

Keeping left

On single-lane roads, you must stay as close as practical to the left side of the road.

On multi-lane roads, if the posted speed limit is 90km/h or more, or if the road has a ‘keep left unless overtaking’ sign, you must not drive in the right-hand lane unless you are:

overtaking
turning right
making a U-turn
avoiding an obstruction
driving in congested traffic
using a special purpose lane that you are allowed to be in.

Drivers are allowed to overtake on the left on all multi-lane roads.

There is a video showing an example.

Importantly, if you are driving on the M1 other than on the left-hand lane and there is no vehicle beside you, if it is safe to do you are obliged to move to the left. Failing to do so, driving in a right-hand lane on a multi-lane road with a signposted speed limit of more than 80km/h attracts a $75.00 fine and two demerit points. Also, failing to drive left after passing a keep left sign attracts $176.00 and three demerit points.

Posted in: Derek Legal Blog at 28 March 18

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