Wills
A Will is a legal document that expresses your wishes
as to what is to happen to your property after your death. It
may also contain directions about other matters such as
guardianship of minor children and funeral arrangements.
Why do you need a Will?
If you die without having made a Will you’ll be ‘intestate’ and
your estate will be distributed according to a formula
set by law. That could result in some of your dependants
not being provided for adequately or in the way you would
have wanted. It could also mean that people you would have
included will miss out, or people you would have left out
will benefit.
Someone may be appointed to administer
your estate, and that may not be the person you would have
chosen.
In almost every case, being intestate will
mean your estate will take longer, and be more expensive,
to administer. This
may cause unnecessary hardship for your loved ones and
will almost certainly mean there is less of your estate
for them to benefit from.
Who should prepare your Will, and what about those ‘home
made legal Will Kits’?
There are now many ‘Will Kits’ available for
purchase. Will Kits vary enormously in quality, and
even the ‘better’ ones can lead to many problems
when they are used by people with no legal training or
background. For example, words such as “equally” or “absolutely” may
have unintentional and undesired effects if they are incorrectly
used.
Furthermore, Will Kits seldom adequately address (or address
at all) the additional provisions required in more complex
situations, such as situations involving blended families,
children with problems (eg mental disabilities, addictions
etc), dependant elderly parents, family trusts, companies,
businesses and so on.
Poorly drafted Wills can give rise to many problems. You
may be left ‘partially intestate’ (part of
your estate is not disposed of) or your beneficiaries or
potential beneficiaries may fight over how much, or what,
they will receive from your estate. Disputes over
the interpretation of a Will can cost an estate (and ultimately
the beneficiaries of the estate) thousands of dollars.
It can cost far more to obtain probate (legally validating
the Will) for a Will that does not comply with the necessary
formalities.
It is therefore important to have your Will prepared by
a lawyer who is experienced in drafting Wills. This
is because an experienced Wills lawyer knows the many legal
requirements and the correct legal terminology necessary
to ensure your Will is drafted in accordance with the legal
requirements. An experienced Wills lawyer will also
be able to give you practical and unbiased advice on the
options available for your particular circumstances to
then draft a Will to suit you.
In short, preparing
your Will with the aid of a lawyer experienced in drafting
Wills is the best way to ensure that, upon your death,
your assets are distributed as you wish and your family
and other loved ones are provided for in the way you intended
with the minimum of cost, conflict and stress to them.
If you already have a Will - when and how often
should you review and update it?
This depends on your individual circumstances. You
should definitely review your Will if any of the following
happens or has happened:
- you marry, or divorce or separate from your spouse;
- you enter into, or end, a de facto relationship;
- you have another child, or adopt or foster a child;
- your financial circumstances change significantly;
- an executor dies or becomes unwilling or unable to
act as executor for any reason;
- a beneficiary (someone who has been left something
in the Will) dies; or
- you have specifically left any property which you later
sell or give away or put into a trust or partnership
or which changes its character. For example, sometimes
shares in a company are given to a beneficiary and the
company later restructures its share capital so that
the shares gifted no longer exist.
If any of these events happen or have happened to you,
contact one of our experienced Wills lawyers who will be
able to advise you whether you need to update your Will. Our
team at Norman Waterhouse has a wealth of experience to
assist you in any aspect of Wills and Advance Directives
(ie Enduring Powers of Attorney, Enduring Powers of Guardianship,
Medical Powers of Attorney and Anticipatory Directions),
Probate and Deceased Estate Administration and Estate Planning.
Norman Waterhouse also offers a convenient Home Visit
Service for Wills and Advance Directives (at fixed fees
for straightforward matters). A mobile Wills consultant
from Norman Waterhouse can visit you in the comfort and
privacy of your own home at a time convenient to you to
discuss these important documents.
 Katrina
Nitschke
ASSOCIATE
Direct Line: (08) 8210 1232
e-mail: knitschke@normans.com.au
Katrina
Nitschke practices both in our
Business
Services Team and our
Wills
and Estates Team.
Liability following
Assignment of Leases
Vendors of businesses and directors of vendor companies
must always consider liability following assignment of
any lease.
Many sales of businesses include the assignment of an
existing lease by the vendor as the outgoing lessee (“assignor”)
to the purchaser as the incoming lessee (“assignee”).
If the lease of business premises is a lease regulated
by the Retail and Commercial Leases Act (SA 1995) (“Act”)
then the liability to the landlord of both the assignor
and any guarantor of the assignor may, in the absence of
any contrary agreement, be determined by the Act.
Section 45A of the Act provides that despite any provision
of a lease, if a lease that is to continue as an ongoing
business is assigned then the assignor and any guarantor
will not be subject to any obligation of the lease
on or after the “relevant date” provided
that:
- The assignor provides an assignor’s disclosure
statement to the assignee before the lessor’s
consent to the proposed agreement is requested; and
- The assignor provides an assignor’s disclosure
statement to the landlord at the time the request
for consent is made.
Assuming there are no other more favourable release arrangements
agreed under the lease terms, if the required process is
followed the liability of the assignor and any guarantor
of the assignor will end on the “relevant date” being
the first to occur of:
- The second anniversary of the date on which
the lease was assigned;
- The date upon which the lease expires; or
- If the lease is renewed or extended after assignment,
the date on which the renewal or extension commences.
When considering any assignment of a lease regulated by
the Act as a part of a sale of an ongoing business the
residual liability of the vendor (and the directors of
the vendor company) must be considered before approaching
the lessor for consent.
These conditions initially include determining:
- Whether the Act applies to the leased business premises;
and
- What the terms of the existing lease provide in relation
to liability post assignment.
Failure to consider these issues may mean that the benefit
of the Act (assuming the lease terms are less favourable
than the Act) will not be available to a vendor and liability
for the vendor and its directors may continue for the term
of the lease (including renewal terms).
If you require help in this area or would like more information,
please feel free to contact: 
James McEwen
SENIOR ASSOCIATE
Direct Line: (08) 8210 1276
jmcewen@normans.com.au
James
McEwen has worked as a commercial
property lawyer in the Northern Territory and South Australia
for over 5 years. His experience includes the management
and conduct of a wide range of property and commercial
matters for a cross section of business and industry,
including financial institutions in both the private and
public sectors.
|
Ian
Colgrave
Bill
Morrow
Paul
Barrington joined Norman Waterhouse as Chief
Executive in April 2006. Prior to this Paul held a number
of senior general and financial management positions
in a range of professional services organisations, including
financial services, commercial law, intellectual property
and professional membership. Before taking up a
career as a professional manager Paul practiced as a
Chartered Accountant including six years at partner level
in a mid-tier national firm during which time he established
and developed an overseas office. In his eighteen years
with professional services organisations, Paul has been
instrumental in driving and managing positive change
and in overseeing the development of strategic plans,
business plans and budgets. He has also been responsible
for day-to day management of key operational support
functions such as marketing and business development,
human resources, financial and management accounting
and reporting, information technology and risk management.
Tim
Griffin joined the firm’s Local Government
team in March 2006 where he specialises in local government
regulation and compliance. Tim has approximately 20 years
experience in law enforcement as an investigator, policy
advisor and prosecutor. He possesses a sound knowledge
of regulatory procedure and is available to provide advice
and training on a broad range of regulatory and compliance
issues. Prior to joining Norman Waterhouse he was extensively
involved in the administration of the Environment Protection
Act and other natural resource legislation. Tim draws
on a wealth of experience and knowledge in the fields
of regulatory procedure and environmental law and believes
in providing practical solutions to compliance problems. 
Andrew
Craig joined the Property, Infrastructure and
Development team as an Associate on Monday 10 April. Prior
to joining Norman Waterhouse, Andrew worked as a solicitor
in New South Wales for over four years in a wide variety
of areas including property development, building and
construction, mining, commercial litigation and environmental
law. Andrew has acted extensively for both private
sector clients and public sector clients and his areas
of speciality include infrastructure and development
agreements, building and construction contracts, property
transactions, general contract and commercial advice. 
David
Billington commenced with the firm in its Planning
and Environment team as an Associate on May 1. He
was previously an Associate to Justice Debelle of the
Supreme Court of South Australia. In his time with
the president of the Land and Valuation Division of the
Court, David was involved with many environment and development
matters. David brings first-hand knowledge of
the processes and procedure of the Court to the firm. Prior
to that David spent 15 months with a boutique law firm
working on a wide variety of matters including property,
energy & resources, trade practices, commercial litigation,
health law and intellectual property matters.
Ryan
Beers joined Norman Waterhouse in January 2006
as part of the Property, Infrastructure & Development
team. Prior to commencing with Norman Waterhouse, Ryan
spent over three years working and studying in China
and speaks fluent Mandarin Chinese. Much of Ryan’s
time in China was spent working at the Australian Embassy
in Beijing for the Department of Immigration and Multicultural
Affairs. Ryan advises in a broad range of areas, both
corporate and property related, including commercial
and contract management. Ryan is also part of the International
Business Team, and advises foreign investors on a broad
range of legal issues. 
Rebecca
McAulay joined the Norman Waterhouse Planning
and Environment team as a solicitor in February 2006
having previously gained two years legal experience at
a middle tier firm in Adelaide. Her areas of specialty
include urban and regional planning, environment, building,
native title, water resources and native vegetation law.
At Norman Waterhouse, she works closely with the Environment
and Planning team in the preparation of Planning Appeals
in the Environment, Resources and Development Court,
assists in the preparation of Land Management Agreements
and enforcement notices under the Development Act 1993
and preparation of advices relating to the Development
Act 1993. 
Corna
Kotzé commenced at the firm on Monday
3 April as a Solicitor in the Property, Infrastructure
and Development team, and has had experience as a property
lawyer in South Africa for over 10 years. She acted for
private developers and as in-house counsel for local
government. She was also admitted as a conveyancer and
notary. Corna’s 8 years with the City Council of
Pretoria (now known as Tshwane Metropolitan Municipality,
the second largest municipality in South Africa) afforded
her the opportunity to be part of numerous commercial
and residential developments, which include Menlyn, Brooklyn,
and Hillcrest shopping centres and the Innovation Hub.