Key Affairs to have for 2021

The new year represents a great opportunity to take control of your current financial position and ensure that you remain secure should the coming year present unforeseen circumstances. If it has been some time since you last updated your will or contemplated asset protection, then you should take some time now to sort through your affairs and make sure everything is in order. Beyond protecting yourself both financially and legally, keeping your affairs up to date will also help protect your loved ones should anything happen to you. This is not a simple process, so we at Le Brun have compiled some questions to help guide you. If you find that your current state of affairs is unsatisfactory, you can contact us to speak to a lawyer today.

Are my assets protected should my circumstances change?

Although you may feel your current financial position is stable, you can never discount the possibility that your circumstances, whether personal or professional, may change. Should your creditors begin making claims against you, your assets could be taken. Assets liable to be claimed by trustees are:

Vehicles, including your primary transportation should it exceed a set amount
Properties you own, including your home
Tools of trade should they exceed a set amount
Cash or money in your bank account, although enough must be left to cover modest living expenses

When financial planning, you should always implement asset protection strategies to limit your creditors’ access to your most valuable assets. Seeking professional legal advice is a worthwhile exercise to keep your assets protected as a lawyer can help put in place trust and tax structures that can keep your assets secure.

If you have not implemented appropriate asset protection and creditors are beginning to make claims against you, it is vital that you seek advice from a lawyer who can keep you informed of your rights during debt collection and enforcement proceedings. Having a lawyer by your side will help minimise the loss of both business and personal assets while ensuring you have the right strategies and plans to address your concerns.

Is my Will up to date?

Many things can change over the course of a year, if you have experienced a significant change in your wealth, assets, or relationships, you need to make sure these changes are accounted for in your Will. If you have experienced one of the following life events since producing your previous Will, you need to update it:

If you have married or divorced
Bought or sold a property or business
Had a child
Significantly increased or decreased your assets

Your Will also must be officially updated if you have decided to appoint another executor to manage your estate, who your beneficiaries are, or who you are entrusting the guardianship of your children to. Although you may have come to an understanding amongst your inner circle, unless you make the necessary changes to your Will, your Will can be exposed to a challenge.

If you do not amend your Will after experiencing a significant change in your assets or relationships, then there may be important terms in your Will which you have missed and should be included in your Will. When there is something unaccounted for in you Will, the rules of intestacy will apply, meaning any assets not included in your Will would be distributed according to the law and not according to your wishes.

Amending a Will is not a simple task and if proper terms and correct procedures are not followed, a Will can be more easily challenged and invalidated. As well as preventing your final wishes from being carried out, an invalid Will can also further complicate an already emotionally fragile time for those impacted by your death and leave your loved ones vulnerable.

Seeking legal advice when updating your Will is a wise choice as a lawyer can help you avoid issues that could lead to challenges once you have passed away. A lawyer can also help you prepare related documents, such as Power of Attorney for Financial, Medical and Guardianship matters.

Drafting a Will when in a second marriage – I have stepchildren, what do I need to account for?

If you have entered into a second marriage, you will need to amend your Will to take into account this significant change in your life. When children and stepchildren are involved, this process can take on another level of difficulty, and it is important you discuss with your new partner how you wish to distribute your shared assets after you have passed.

Although adopted children and biological children you have outside of your marriage will automatically be included as beneficiaries if you leave you assets to “my children”, you will need to specifically outline whether you wish to include your stepchildren. Once you have decided to either include or exclude your stepchildren from your Will, you will need to take into consideration a number of scenarios, including:

How will assets shared by you and your partner be distributed?
If you make your children sole beneficiaries, how will you ensure your partner is protected should you pass away first?
If your partner is the primary beneficiary of your Will and you pass away first, how will you ensure your children get a share in your remaining assets once your partner passes?

These are complex scenarios that will require you to set up trusts or keep your assets separate to those of your partner in order to reach your desired outcome. Given the complexity of these scenarios and solutions, it is highly recommended that you consult a lawyer when drafting your Will, as a lawyer can help you sought through the numerous considerations that must be made.

At Le Brun & Associates, our dedicated team of lawyers can help you get your affairs in order, giving you peace of mind and keeping you secure should your circumstances change. We provide sound and knowledgeable advice with the highest level of service to ensure you are protected. Contact us today for your FREE 30-minute consultation. At Le Brun and Associates, we always stand by you.

Asset Protection Strategies

Once you have accumulated assets, it is important to begin putting in place the appropriate structures to protect them. Although this may seem unnecessary if you are in a secure financial position, you must remember that your circumstances may change and losing assets through litigation can happen if they are not properly protected. If your assets are all owned in your personal name, then you may be particularly vulnerable to asset loss.

If you are being pursued by creditors, assets you are liable to lose include:

Any property you own, including your primary place of residence
Any vehicles you own, including your primary source of transportation if its value exceeds $8,100
Your tools of trade if their value exceeds $3,800
Money, both physical cash and the amount you have in your bank account

Both your personal and business assets can be lost if you have not taken the necessary steps to protect them. This is why asset protection is a vital part of financial planning. To ensure you have the most appropriate measures in place, you should contact a lawyer to assist you. A Lawyer will be able to assist you in setting up the following protections for your assets.

Trusts & Business Structures

For asset protection during your lifetime, you should be looking into trusts and company structures. With the correct trust, tax and business structures you can minimise asset loss and ensure remain secure in your lifestyle.

Trusts are a popular method of asset protection as they transfer ownership of your assets to a trustee, who holds the assets on behalf of the beneficiaries. As a beneficiary of a trust, you will not be the legal owner of your assets, therefore creditors will not be able to take them from you.

Setting up a trust is not a simple solution that will always benefit you, there are many kinds of trusts which all entail different advantages and disadvantages. The different types of trusts you can use for asset protection include:

Family Trusts
Testamentary Trusts
Business Trusts

When establishing a trust, you must consider which type of trust is most suitable for you and how your trust may affect your taxes. You need to consult a lawyer before establishing a trust so that you can benefit from informed advice regarding the type of trust you should place your assets in.

Beyond trusts, you can further protect your business assets by ensuring your business is structured in the way most beneficial for you. The four most common business structures in Australia are:

Sole Trader – This structure will give you full control of your business
Company – This structure will limit your liability by making your business a separate legal entity
Partnership – This structure will divide income and losses between multiple owners
Trust – This structure will make a trustee responsible for business operations

You can protect your assets by structuring your business as either a company or a trust, as these structures will limit your liability. You can change your business structure at any point over the lifetime of your business, but you should consult a lawyer before undergoing any major changes to ensure the new structure will protect your assets. A lawyer will also be able to assist with the changes to your taxes that may occur as a result of changing your business structure.

Estate Planning

To protect your assets at the end of your life, you must begin estate planning. Planning your estate involves more than writing your Will, as you must also consider what will happen if you have diminished capacity and require full-time care. When estate planning, your main objective should be to ensure control of your assets gets passed to the people of your choice in a timely manner with minimal tax repercussions.

The first step in developing a complete estate plan is to create a Will and ensure it remains up to date over the course of your life. Once you have a Will, you must also consider:

Superannuation – Your super will not be immediately paid to your estate unless payment to your estate is specified in the agreement you have with your super fund. To control where your super goes, you must have a Binding Death Benefit nomination.
Life Insurance – If you have a life insurance policy outside of your super fund, you will generally be able to nominate who will receive the payout once you have died. In cases where you have not nominated a beneficiary your policy will be paid to you estate, in which case there will be a legal requirement to provide Probate or Letters of Administration.
Tax Consequences – Depending on how your beneficiaries receive your assets, they may be required to pay tax on them. There are multiple strategies you can employ to limit the tax impacts faced by your beneficiary; a lawyer will be able to help you implement them.
Power of Attorney – You can nominate someone to carry out tasks on your behalf if you ever lose the capacity to handle your affairs. You can also nominate a Power of Guardianship, which will allow someone to make choices regarding your health and lifestyle. When nominating people to these roles, you must ensure you trust them as they may end up with significant control over your life and affairs.

With a robust estate plan in place, you will be able to protect your assets beyond the end of your life and make sure your beneficiaries receive what you wish to give them.

Changes in Spousal Relationships

For couples entering into a marriage, the thought of how assets will be divided in a future separation may not have occurred. However, if you wish to secure the assets you have accumulated prior to the marriage, you must put protections in place to ensure you keep them in case of divorce. A family lawyer will be able to assist you by preparing a Binding Financial Agreement (more commonly referred to as a Pre-Nuptial Agreement). These agreements will address how to divide assets after a separation and will remove the Family Court from the decision-making process. Similar agreements about the division of assets can be entered into at any time during a relationship.

If you are experiencing a marriage breakdown but do not have a Binding Financial Agreement, the decisions around who keeps which assets could be made by the Family Court under the provisions of the Family Law Act. Despite the common belief that divorces will lead to an equal split in the assets between partners, there is no set formula followed by the court when dividing assets and partners rarely receive exactly half of all assets. Considerations made by the court whilst dividing assets include, but are not limited to:

Assets and liabilities of both parties
Assets owned by each partner prior to the marriage
Financial contributions made by each partner toward assets, e.g. renovations to properties
Length of the relationship
Whether there are children involved and who the primary caregiver is
The age, health and income of both parties

To ensure you get your fair share in a divorce, you need to contact a divorce lawyer. A lawyer will keep you informed of your rights and represent your best interests, having a lawyer will give you the greatest chance of protecting your assets.

At Le Brun & Associates, our dedicated team of lawyers can assist you in setting up trusts and correct tax structures so your assets are protected if you circumstances change. We can provide advice and legal assistance to keep you secure. Contact us today for your FREE 30-minute consultation. At Le Brun and Associates, we always stand by you.

Partner Separation During COVID-19: Know Your Rights

The COVID-19 pandemic has fundamentally changed our day-to-day lives, affecting small things like how we shop and large things like how we work. This has understandably placed a great deal of stress on relationships, with data from Relationships Australia suggesting that 42% of people have experienced negative changes in their intimate relationships. Divorce rates are likely to increase post-lockdown as a result, so if you are now preparing to separate from your partner, you are not alone.

It is a confusing time to be considering leaving your partner and, for people who have already left their partners, it can be tricky to navigate the arrangements made pre-COVID regarding finances and childcare. But even though the world around you has changed, your rights have not. Having a lawyer by your side at this time is very important, as a lawyer can help you:

Gain access to emergency funds
File for an intervention order
Walk you through remote hearings
Ensure you retain access to your children

Having a lawyer on your side is the only way you can make sure your rights are maintained as you go through the process of separating from your partner. If you feel trapped in your current financial and living arrangements, or if you are struggling to maintain contact with your children, a Family Law Solicitor can help you regain your feet and gain your rights.

Accessing Funds

When you live with your partner and share funds, it can be difficult untangling your life from theirs once you have decided to separate. This situation can be made worse if you need to leave the property you share with your partner or need money to finance your life post-separation. The pandemic may have put further stress on your finances through its toll on the economy and working Australians, making accessing your funds even more vital. A lawyer is essential in handling these situations, they can negotiate with your former partner or their representatives to secure access to funds, apply to the court for urgent orders to seek a release of funds, and secure any money you are entitled to by way of property settlements. You have a right to remain financially secure after separating from your partner, hiring a lawyer can ensure that you are not taken advantage of.

Contacting Children

Rules and restrictions around travel and social contact have been put in place by the Victorian Government to help stop the spread of the coronavirus, although these rules can stop you from seeing your friends, they cannot stop you from seeing your children. The childcare arrangements you had with your partner before lockdown have not been changed in light of the pandemic, your rights remain the same. If your former partner is trying to restrict your access to your children, they are infringing on your rights. Hiring a lawyer is the most effective way to gain your rights as a parent as a lawyer can communicate with your former partner on your behalf and take your case to the family court if they continue to deny your visitation rights.

Getting a Hearing

You may think the lockdown has resulted in the courts being closed, but this is only true on a physical level. All courts remain operational, though hearings are now being conducted online as opposed to in the courthouse. A lawyer will help you get your matter heard by the court; we have the set-up required for virtual hearings. Some court procedures have been changed due to COVID-19, including the process for obtaining an intervention order, lawyers can help you navigate these changes and inform you of all your options.

At Le Brun & Associates, our dedicated team of Family Law Solicitors and Divorce Lawyers can help you navigate the complications associated with your separation with confidence and meet your urgent needs to seek clarity so you never feel alone. We provide sound and knowledgeable advice with the highest level of service to ensure that you get the best possible outcome from your separation. Contact us today for your FREE 30-minute consultation. At Le Brun and Associates, we always stand by you.

Unfair Dismissal Cases & Claim

Losing employment can be devastating, taking a toll on both your mental and financial health. If you have recently lost your job, it is important that you consider all your options as you may be able to seek reinstatement to your position or be entitled to compensation. At Le Brun & Associates, we can help work out whether you have a case for unfair dismissal and we can guide you through the court process to make sure you obtain a positive outcome. Any compensation payout would be sought to take into account the costs associated with pursuing a claim, so you will benefit from calling us to assess your options. It is important to speak with one of our lawyers as soon as possible, as the window for lodging a complaint with the Fair Work Commission is only 21 days from when you are terminated from your employment.

Do I Have A Valid Claim?

It can be challenging working out whether your former employer breached Fair Work legislation in dismissing you. To meet the criteria for a valid claim you need to have worked for your previous employer for at least 6 months in either a part-time or full-time role, and:

Earned less than $153,000 per year, or
A modern award covers your employment, or
An enterprise agreement applies to your employment

Some of these criteria may vary if your former employer is a small business. The next thing you need to consider is whether your loss of employment was a genuine redundancy, meaning changes in the business have made your previous role unnecessary and your employer has complied with any applicable award or enterprise agreement. Our lawyers can help you work out whether you meet these criteria, so please call us for the assistance you need in seeking clarification.

If your loss of employment was based on performance rather than redundancy, you may still have a valid claim for unfair dismissal. Before they can dismiss you, your employer must warn you about performance issues and give you time to resolve these problems. So, if you were given no prior warning before dismissal, we may be able to help you make a claim for unfair dismissal.

At first glance, you may not believe you have a solid case for unfair dismissal, but there is still value in speaking with one of our lawyers as we might discover that your claim is valid due to an exemption in recent legislative changes. So, contact us and we can walk you through all your options.

What Happens When I Make A Claim?

There are a number of different routes you can take once you have decided to make a claim, and our lawyers can guide you through them to ensure the most beneficial outcome for you.

A voluntary first step is conciliation, an informal method of resolving disputes between you and your former employer. This process is done outside of the court, we can help negotiate with your former employer so you can obtain the best possible outcome for you. You and your former employer are under no obligation to reach a settlement during conciliation.

If conciliation does not resolve the issue, then your claim will proceed to arbitration where it will be reviewed in either a conference or a hearing by the Fair Work Commission. Our lawyers can help you prepare your case, ensuring it is clear and organised, and represent you at any such hearing. Well prepared unfair dismissal cases are far more likely to succeed, so speaking with one of our lawyers will benefit you greatly.

It is important to have legal representation throughout this process to ensure you are always well-informed of your options and aware of any coming deadlines. The outcome of an unfair dismissal case can drastically affect your life and your income, so call us and we will assist you.

At Le Brun & Associates, we care about you and will do all in our power to help you either regain your employment or seek compensation. We can assist you through the negotiation process with your former employer and represent you at the Fair Work Commission. It is important to contact us as soon as possible to get the best chance of success in your claim. Contact us today for your FREE 30-minute consultation.

Purchasing a Property or Land? 5 Reasons Why you need a Lawyer on Standby

Our professional property and litigation lawyers will help you every step of the way with your land, first home or investment property purchase to achieve the best possible outcome.

Purchasing a home or area of land is a major investment at any stage in life. While it’s an exciting process, it can be equally daunting, especially if you’re a first-time buyer. In theory it might appear straightforward to purchase a property, but in practice there’s a lot of work involved and several instances where matters can become complicated. For example, understanding legal jargon outlined in your contract or assessing your specific tax requirements.

Having an experienced lawyer by your side gives you:

total transparency of your contracts;
confidence in decision making; and
peace of mind.

An expert solicitor assures you’re covered throughout all unexpected areas of the property purchasing process. They can alert you to any concerns along the way and certify that everything is carried out correctly and legally to protect your best interest and make your investment worthwhile.

Here are 5 Reasons why having a property lawyer on standby is essential and how they can help you through every stage of the purchasing process:

1. Providing Advice on Property Inspections

There can be several areas of concern to look out for when inspecting a property, from internal damage such as mould to contaminated land surrounding the estate. These types of issues are not only costly to handle if you’ve already signed a contract, but they are an extreme health hazard and can have long term negative effects on your wellbeing. An experienced solicitor can give you advice about site inspections and help you arrange for searches and certificates to determine the condition of the property in question. Once the documents and certifications regarding the property are obtained, a lawyer can then review them with you so you can make a fully informed decision before committing.

2. Arranging & Reviewing Official Documents

There are several terms and conditions to understand when signing a contract for a property or land. Contracts can be particularly confusing when legal terminology is used which can be time consuming and stressful to interpret on your own. A solicitor not only arranges all your contracts to ensure everything is covered but with their expertise they know how to check for the right inclusions and exclusions as well as how to identify any unfair clauses. For example, real estate agents are not obliged to tell you about construction sites or developments in your area such as apartment blocks, skyscrapers, or power lines. This information can also be difficult to get hold of from your local council, but a lawyer can provide a comprehensive contract review to ensure there are no unexpected surprises down the road.

3. Preparing Financial Advice & the Deposit

Whether you’re a first home buyer or seasoned investor, a house or land is usually one of the biggest purchases you’ll ever make so you need to feel financially confident. There are several financial factors to consider from stamp duty, GST and capital gains tax (if you’re also selling your current house in exchange for a new one). A lawyer can help you calculate any taxes, so you’re not blindsided by any upcoming costs. Additionally, they can help you with your deposit by placing it into a trust account to ensure it’s ready prior to settlement.

4. Working with all Statutory Authorities Between Settlement

Before a final settlement comes into play, which can take between 4 weeks to 4 months for your desired property, a lawyer will continue to conduct enquiries on your behalf. They will work with all statutory bodies including the local council and water authority to check whether rates have been paid up to date. They’ll also prepare a transfer certification of the property from the Office of State Revenue before you need to settle. A lawyer can also work with your financial provider if necessary, to make sure all aspects of your finances are ready to take place on your appointed settlement date.

5. Settling the Property

A lawyer will help you finalise everything from start to finish, from an initial contract review, final inspection disputes, as well as being by your side to settle the property on the nominated day. Their presence throughout the entire process is to make sure nothing is overlooked to guarantee the best deal moving forward. Settlement involves liaising and working with the current owner’s lawyer, your banking institution and local government agencies, such as, the Titles Office and council, to transfer the ownership title of the property. A qualified lawyer can also ensure that mortgage security is released from any lenders, remove any caveats and any other obstructions that might interfere with the final settlement.

At Le Brun & Associates, our dedicated team of Property & Litigation Lawyers can help you purchase a property or area of land with complete confidence. We provide sound and knowledgeable advice with the highest level of service to ensure that you get the best possible outcome from your investment. Contact us today for your FREE 30-minute consultation.

COVID-19 – Making Sure your Business is Covered

As experts in business and employment law, our lawyers at Le Brun & Associates are here to support you through tough times.

Just like the rest of the world, Australia is facing unchartered territory as we watch the effects of COVID-19 unfold. The spread of the virus is having major impacts on people’s health, daily routines, work and business operations. Rarely do people or businesses outside of the health sector have plans in place for a pandemic, particularly as rules and regulations enforced by governments in novel times are so unpredictable.

As many people’s livelihoods are on the line, this article addresses three major concerns for businesses regarding workplace laws, new business ventures, and managing debt and creditors in these uncertain times.

Abiding by Workplace Laws

Several businesses have been forced to stand down most of their staff or shut down their workplace entirely for the sake of public health and safety. But this has made workplace laws surrounding employer and employee rights confusing to say the least.

For eligible employers that have qualified for the JobKeeper Payment Scheme but are unsure about your entitlements and obligations as an employer, the Fair Work Commission has released a guide on managing disputes.

However, if you’re a business that doesn’t qualify for the government subsidy, and you’ve been facing complex decisions such as:

Standing down employees without pay;
Reducing staffing costs;
Making redundancies;
Issuing new employment contracts; and
Subsidising leave payments;

Then you need to exercise caution before you make any final decisions. Enforcing hasty business decisions in order to protect your business now could be the subject of litigation down the line. It’s essential to seek professional, legal advice to ensure your business operations are lawful and protecting everyone’s best interests.

Starting New Business Ventures

While it’s important to remain optimistic during hard times, now might not be an ideal time to start a new business venture or purchase a franchise. Why? There can be several drawbacks with starting your own business under ordinary circumstances including:

High start-up costs;
Long hours;
High stress & responsibility;
Unsteady revenue; and
Great financial risk.

Not to mention the current disruptions to supply chains across Australia and the world, as well as an unpredictable economy. So instead you should consider getting all your potential business plans in order first before locking anything in. This can help you position yourself for the best possible chance of success. If you need general business advice on commercial leases (for property or equipment), franchise agreements, or contractor & employment agreements, one of the most efficient ways to assure you’re covering the necessities is by consulting an expert in business and employment law.

Managing Debt & Creditors

Whether you’re a sole trader or small business, if you’re struggling at the moment with debt amid the chaos of COVID-19, then you’re certainly not alone. While resolving debt can be one of the most stressful aspects to deal with in life, there are several ways you can manage and reduce debt over time by:

Assessing your budgets – Take a closer look at your business’s budgets and see where your money is going to establish how you can put it to better use.
Reworking & cutting down on costs – After you’ve identified your income versus your daily, monthly and annual costs, you can start to rework your budget and see where you can cut down on costs.
Negotiating with creditors – Speak with creditors directly to fashion a mutually beneficial repayment agreement through a formal extension, renewal or changing an existing agreement.
Prioritising your debt – Identify what you can afford to pay now, what you can pay later and where you need to meet in the middle.
Contacting your bank – Talk to your bank about applying for financial hardship and what you might need to outline your business’s current financial situation.

There are also some online government resources to help you handle business debt including the Australian Securities & Investments Commission (ASIC) and Support for Businesses in Australia.

At Le Brun & Associates, we can offer referrals to accountants and financial advisors alongside our Business & Employment services. As experts in business and employment law, we can offer advice and support on a range of workplace legal matters including employee leave and entitlements, business loans, debt recovery and lots more.

If you’re a business owner or an employee who is in need of urgent legal advice as a result of COVID-19, we offer a FREE one-hour initial consultation (normally only the first 30 minutes free). Contact us today.

Coronavirus update – a letter from our Principals

To our Valued Clients,

Like you, we’re watching all the coronavirus (COVID-19) developments with increasing concern. Things are changing rapidly and daily, but our priority remains the health and wellbeing of our staff and clients during these uncertain and challenging times. This includes the continuation and resolution of any legal proceedings and matters.

We have taken all the necessary safety precautions and, for now, our offices will remain open. Here’s everything we’re doing to ensure we can continue to support our valued staff, clients and the community in response to COVID-19:

Feeling unwell? If you’re experiencing flu-like symptoms, have travelled or come into contact with someone who travelled to high-risk areas, or have come into contact with someone who has tested positive please stay home and call your GP.

Personal hygiene: We’ve stepped up our cleaning processes, and are wiping down all surfaces and doorknobs regularly. We ask our clients and staff to thoroughly wash their hands or use hand sanitiser before and after each visit. We have soap and water and hand sanitiser available in each office.

Social distancing: You’re still welcome to book a face-to-face meeting with us. Some of our team is now working from home, with essential staff members permitted to be in the office as per social distancing requirements of 1.5m between individuals.

Virtual consultations: If you are in isolation, experiencing flu-like symptoms or feel unsafe to attend our office in person we can still provide advice, consultations, witness interviews and group sessions via telephone and Facetime.

Online court: Although courts have closed and all in-person hearings and trials have been suspended, an online court system has been set up to deal with urgent matters. Therefore, we may still be able to attend court appearance and proceedings. We can also attend ‘e-court’ on your behalf if you’d prefer.

Financial assistance: If you have lost your job or income as a result of COVID_19 and are concerned that you may no longer be able to pay for your legal fees, speak with our compassionate expert team on what options are available to you.

Need COVID-19 related legal advice?

The continued spread of COVID-19 is also having a serious impact on our economy and our hearts break as we watch many local businesses struggle and jobs being lost as a result.

As experts in business and employment law, we can offer advice and support on a range of workplace legal matters including work, health and safety (WHS), employee leave and entitlements, debt recovery, business loans and lots more.

If you’re a business owner or an employee who is in need of urgent legal advice as a result of COVID-19, we offer a FREE one-hour initial consultation (normally only the first 30 minutes free).

We’ll continue to monitor the situation and let you know if anything changes. In the meantime, feel free to contact us with any concerns or questions regarding your matter on (03) 9741 6000.

We are here and will continue to serve our local communities in Werribee, Hawthorn and Moonee Ponds.

Helen LeBrun & Andrew Sutton

How is Inheritance Treated in a Separation?

Is your ex-partner making claim to your inheritance? Contact one of our expert family lawyers for advice today.

In today’s society, separation and divorce are much more commonplace, but this doesn’t make dividing your property or assets any easier. There are several things to consider when separating from your partner. Deciding who gets what and whether someone is entitled to the other’s personal effects can be extremely tricky business.

Everyone has the right to protect their own interests, for example, you may have a property you wish to keep which was inherited during your marriage. However, you need to know where you stand legally when it comes to inheritance as every case is different.

To give you some insight on your personal situation, here we have outlined some common concerns when it comes to inheritance and separation:

Is My ex-partner Entitled to my Inheritance after we’ve Separated?

In some cases, your ex-partner might be entitled to your inheritance after you’ve separated but this depends on whether your inheritance qualifies as part of your marital assets. Marital assets refer to all property during the course of the marriage regardless of ownership or who holds the title of it. This is up to certain nuances within your relationship including:

The timing you received the inheritance (whether it was received early on or right before you separated from your partner);
Whether the assets from inheritance were shared e.g. a car or a lump sum of money which was placed into a joint bank account;
Whether some of the inherited assets or funds were used during the relationship (e.g. whether they were used for a family business or home improvements); and
The size of the inheritance (in comparison to the total pool of joint assets before the inheritance was received).

How are Marital Assets Divided?

If you and your ex-partner cannot come to an agreement with how your marital assets should be divided including any inheritance, then normally you will need to attend family dispute resolution before any Court proceedings. The is the best way to avoid additional emotional and financial stress within your relationship.

If you cannot come to an agreement with your former spouse or de facto partner, then you will need to apply for property orders through the Courts. You should be aware that there is no guarantee with how assets will be determined and divided by a judge in Court. They will make their decision based on what evidence of your inheritance is presented in Court and on your individual circumstances with your partner, both personally and financially.

Get Professional Advice from an Expert Lawyer

Protecting your inheritance isn’t always straightforward. It’s always best to seek professional legal advice as early as possible so you can assess all your options and understand where you stand.

At Le Brun & Associates, we understand that separating from your partner is an extremely stressful and emotional time, that’s why we provide a free 30-minute consultation to assess your needs and inform you of your options.

Contact our team of family and divorce lawyers today for advice and ongoing support.

Can Stepchildren Challenge a Will?

When it comes to Wills and Estates, each case is different. To ensure you have the best options, receive expert advice from an experienced lawyer.

In today’s world there are so many types of ‘modern families,’ with second marriages, adoption, foster children and anything in between becoming ubiquitous. Considering the amount of growing blended families over the years, it’s not an uncommon question to hear, “Can a stepchild or stepchildren challenge a Will?”

What does Victorian Law Say?

Rights of stepchildren vary slightly across each state in Australia. Previously, Victoria used to be one of the most flexible states in Australia for making a claim against a Will, as eligibility to contest a Will was not specified.

However, on January 1^st, 2015, legislative reforms became effective, detailing eligible people who could contest a Will. A list of eligible people who can contest a Will is provided in the Administration and Probate Act 1958 (Vic) s 90(c), which governs an eligible person’s right rights in relation to Wills and Estates. This list includes:

A spouse or domestic partner (registered or unregistered at the time of death)
A registered caring partner
Adult children
A grandchild
A person who was (and was likely to be in the near future) a member of the deceased’s household
A child of the deceased (including adopted or stepchild, or someone who believed the deceased to be their parent and was treated as such) who at the time of death was:
Under the age of 18 years old;
A full-full time student under the age of 25;
Or suffering from a disability.

What Factors does the Court consider with the rights of a Stepchild?

Essentially, stepchildren are considered eligible people when it comes to contesting a Will but there are variable factors the court will take into account before ruling in their favour which include:

Closeness of the relationship between the stepchild and step-parent
Age of the stepchild and at what time they become a member of the family and
The level of financial, educational and emotional support the stepchild depended on from the deceased.

Example of a Court Case involving Stepchildren

Every court case is different depending on your individual circumstances, which is why its best to consult a lawyer to ensure you have a reliable claim to make. Here is a famous example of a court case in Victoria where a stepchild was successful in making a claim to a Will:

Bail v Scott-Mackenzie 2016 – This case showedthat the death of a natural parent does not cease the relationship between a step-child and step-parent. Additionally, it demonstrated that a natural parent and new partner do not have to be married for the new partner to be considered a ‘step-parent.’

What happened? Here the plaintiff’s mother, Ms Holmes, had been in a relationship with her domestic partner for 40 years. When the plaintiff’s mother, Ms Holmes, died, her domestic partner later commenced a new relationship with another woman who he remained with until his death in 2016. In his Will, the deceased left everything to his new partner. The dispute was whether, legally, the plaintiff was to be considered a stepchild despite her mother and the deceased never being married. The plaintiff was successful in her application with the judge ruling that a ‘stepchild,’ includes the child of a domestic partner as well as a child whose natural parent in a de facto relationship dies before the remaining step-parent instead of separating from them.

At Le Brun & Associates, we understand that life circumstances and family relationships can be unpredictable. That’s why we provide a FREE 30-minute consultation with one of our fully qualified and professional lawyers to discuss the best options for you.

If you need caring, compassionate advice or more information on your rights as a stepchild or step-parent, our experienced and compassionate family and property lawyers can advise you on sensitive matters and are dedicated to supporting you with accurate, fast and cost-effective advice.