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Derek Legal Blog

Author: Derek Legal

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Derek Legal Blog

Number of blogs returned: 21 to 25 records of 36

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.

Contact Rita Derek of this firm for further advice.

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.

Contact Rita Derek of this firm for further advice.

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.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 28 March 18

The obligation to pay child support

Parties to a marriage or de facto relationship have an obligation to support the children of that relationship. Generally speaking, the amount of child support to be paid is covered by a statutory formula which involves the income of each parent and the time spent with each parent. Child support is a debt to the Commonwealth not to the other party and the child support agency enforces that debt if necessary by litigation.

There are times when the Act does not apply, for instance for a child under the age of 18. If the child is adopted and becomes a child of the marriage of other parties or if the child marries because the obligation is to support ceases to that point. Or if the child leaves home, obtains employment and is able to support his or herself.

The obligation to provide child support as a general rule applies until the child turns 18.

There are however, two exceptions to that rule. One is if the child is in a course of study for instance attending University or Tafe. However, in those circumstances the earning capacity of the child will be taken into account or if the child has a mental or physical disability which impacts on his or her ability to obtain gainful employment.

It should be noted that the Family Law Act allows that the following may apply for a Child Maintenance Order:

1.       Either or both of the child’s parents;

2.       The child;

3.       A grandparent of the child;

4.       Any other person concerned with the care, welfare or development of the child.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 21 March 18

How to make a will for a person who lacks testamentary capacity

To make a valid will a person must have testamentary capacity. To have testamentary capacity the following must be shown:

 

1.       The Testator must be aware, and appreciate the significance, of the Act in the law upon which he is about to embark;

2.       The Testator must be aware, at least in general terms, of the nature, extent and value of the estate over which he has a disposing power;

3.       The Testator must be aware of those who may reasonably thought to have a claim upon his testamentary bounty, and the basis for, and the nature of, the claims of such persons;

4.       The Testator must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.

 

A person who had testamentary capacity may lose it in a number of ways, for instance by suffering a head injury or having dementia. A person who lacks testamentary capacity may not have a will, or the will that, that person does have is no longer suitable because of a change of circumstances.

The Succession Act 1981 provides a court may authorise a will to be made, altered or evoked for a person without testamentary capacity.

 

Subsection 2 provides “the court may make the Order only if”: -

(a)    The person in relation to whom the Order is sought lacks testamentary capacity;

(b)    The person is alive when the Order is made;

(c)     The Court has approved the proposed will alternation or revocation.

 

Section 22 provides that a person may only apply for an Order under Section 21 with the court’s leave.

Section 23 provides the information required by the court in that application.

Section 24 provides what the court must be satisfied of before granting leave under Section 22 namely:

 

A court may give leave under section 22 only if the court is satisfied of the following matters—

(a) the applicant for leave is an appropriate person to make the application;

(b) adequate steps have been taken to allow representation of all persons with a proper interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom an order under section 21 is sought;

(c) there are reasonable grounds for believing that the person does not have testamentary capacity;

(d) the proposed will, alteration or revocation is or may be a will, alteration or revocation that the person would make if the person were to have testamentary capacity;

(e) it is or may be appropriate for an order to be made under section 21 in relation to the person.

 

Before the court gives leave, the court must be satisfied of all the matters in Section 24.

Recently, the Court gave leave in a case where the Testator had made a will and thereafter suffered an acquired brain injury as a result of an accident. At the time the will was made, the Testator had little in his estate. The Testator received a substantial Award of Damages and the court approved a new will which dealt with the vastly enhanced state.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 28 February 18

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