Michael Paterson and Associates in Osborne Park, Western Australia | Legal service

Michael Paterson and Associates

Locality: Osborne Park, Western Australia

Phone: +61 8 9443 5383

Address: 88 Walters Dr 6017 Osborne Park, Western Australia, WA, Australia

Website: http://www.patersons.com.au

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23.01.2022 Importance of Binding Death Benefit Nominations Just as everyone should have a Will to ensure their assets are disposed of according to their wishes, and not according to the outdated Administration Act of 1903, everyone should have a binding death benefit nomination for their super and any associated life insurance, otherwise it is left to the discretion of the trustee. Couples often have binding death benefit nominations in favour of each other, but what happens if the surv...ivor of them does not have a chance to make a new binding death benefit nomination, e.g. in the event of mental incapacity, or death in the same accident? It is possible to cover contingencies, but not with the standard wording of the pro forma binding death benefit nominations provided by the likes of AMP, MLC, Macquarie, etc. They need to be tailored. For help and advice on tailored binding death benefit nominations and other estate planning issues contact Michael Paterson & Associates, (08) 9443 5383 See more

20.01.2022 Wills and Testamentary Capacity In relation to another matter we are handling, we tried unsuccessfully to contact a lawyer who had prepared a Will for a now-deceased client. That lawyer is himself now under care and unable to assist. We are now having to chase medical records going back to 2004 from the medical practice the client attended, and his usual treating doctor has since retired, which makes it harder still. Therefore, I confirm that it would be a really good idea ...to get a letter from the solicitor that prepared the Will, to keep with the Will, to use when applying for probate. If there is evidence that the testator lacked testamentary capacity or did not intend to make a will or the particular will that was made, the matter could be raised in probate proceedings and that could prevent a will from being admitted to probate. The letter should contain this sort of wording: On [Date] I prepared a Will for my client, [Full name of testator/testatrix] (My Client). At the time the Will was made, I satisfied myself that My Client: (a) was of a sound mind; and (b) understood: (i) that she was making a testamentary document; (ii) the extent and nature of her obligations to her relatives and others; (iii) the extent of the property of which she could dispose; and (iv) what her estate comprised of; and (v) that she wanted the named beneficiaries in the Will to receive the gifts specified. My Client then signed the Will in the presence of me and [full name of the other person], as the other subscribing witness. We then signed the Will in each other’s presence and that of My Client. If you found this article helpful, please consider providing a Google Review and/or like us on Facebook. For help and advice on estate planning issues contact Michael Paterson & Associates (08) 9443 5383 | www.patersons.com.au

19.01.2022 Enduring Power of Attorney (EPA) and Dealing with Land Recently we assisted a pair of clients acting as Attorneys for an Enduring Power of Attorney (EPA) in dealing with Land owned by their parent. The two were required to lodge an original signed copy of the EPA with the Registrar of Titles at Landgate. Since the EPA would be lodged more than 3 months after it was signed, it needed to be accompanied by a Statutory Declaration of Non-revocation or Variation. This form, B3, ca...n be found here. https://www0.landgate.wa.gov.au//FREEHOLD_LRF/$file/B3.PDF To be effective the Statutory Declaration must: Identify the donee(s); Identify the EPA by reference to the donor and date of execution; State that the donor is still alive; Describe when and how the donee last saw or communicated with the donor within the last 7 days; Declare that the EPA has not been revoked by the donor; State that the State Administrative Tribunal (SAT) or an appointed Administrator has not varied or revoked the EPA; and State that a substitute donee has not been appointed by the SAT. Finally, the EPA needs to be lodged with a Form EPA cover sheet, which can be found here: https://www0.landgate.wa.gov.au//0/9744/EPA-Coversheet.pdf If you found this article helpful, please consider providing a Google Review and/or like us on Facebook. For help and advice on issues with EPAs or dealing with land contact Michael Paterson & Associates (08) 9443 5383 | www.patersons.com.au

16.01.2022 I’m carrying on the Binding Death Benefit Nomination (BDBN) theme from last week. If you want your BDBN to be non-lapsing (which is recommended) almost invariably, the Trustee of the Superannuation Trust Fund needs to provide his/her/their/its consent. If you have a SMSF, ensure that the trustee consents in writing to the BDBN, preferably as part of the form itself.... If you have super in a commercially-managed fund: (a) seek confirmation of the consent from the Fund’s trustee, or someone authorised to act on behalf of the trustee; or (b) ensure that the BDBN that you have made is covered by the Super Fund’s policies, such that consent is automatically given. For help with BDBNs, contact Michael Paterson & Associates (08) 9443 5383

16.01.2022 Double Deceased Estate We are helping with the administration of a double deceased estate, where an elderly son died not long after his even more-elderly mother. The son was broke, having borrowed far too much from a bank. He died still owing nearly $5 million, according to the bank, at least, even after the bank sold his properties for him. However, the amount owed is in dispute. His main asset was his expected inheritance, which exceeded the debt, but nothing was received f...rom her estate until well after he had passed away. The bank has sued for that balance in 2015, and seems to have been waiting for that inheritance to come through, but has done nothing for over a year. The matter may well be in the inactive cases list and destined to be dismissed for want of prosecution. We have advised our client not to distribute any proceeds to any beneficiaries, pending resolution, one way or the other, of the dispute with the bank. We have not yet been instructed in relation to the court proceedings brought on by the bank, but admissions made during the recent royal commission indicate that the bank may not recover anything like the amount it is claiming. If you found this article helpful, please consider providing a Google Review and/or like us on Facebook and LinkedIn. For help with estate planning documents contact Michael Paterson & Associates (08) 9443 5383 | www.patersons.com.au

15.01.2022 DISPUTE OVER UNPAID INVOICES I received a call recently from the daughter of a gentleman who has taken out his own summons in the Magistrates Court, chasing over $62k in unpaid invoices. A trial had been listed, but various orders had been made in the meantime regarding procedural steps that needed to be taken. Unfortunately, the daughter and her father had not understood properly what they needed to do. To date I have spent a bit over an hour discussing the issues, sending... them various forms and a draft spreadsheet and a few tips. I may need to meet with them and help them some more in order to ensure that the matter is ready for trial. If so, I will also suggests ways and means to settle the matter, without needing to have the trial, since the whole thing is really an accounting exercise, and it should not need a Magistrate to sort it out. I suspect that, once they pin the enemy down to the details in the spreadsheet, the matter should really resolve itself quickly. For assistance with Magistrates Court and other court matters, Michael Paterson & Associates (08) 9443 5383

14.01.2022 Commercial Tenancies During The Coronavirus Pandemic With all the excitement of the Federal Budget and the myriad pre-budget announcements, a lot of people missed the changes to the Commercial Tenancy (COVID-19 Response) Regulations 2020, which took effect on and from 30 September 2020. The key points are:... The emergency period and the operation of the regulations and the Act, have been extended to 31 March 2021; Rent still cannot be increased for tenants which are eligible for Jobkeeper 2.0, but can otherwise; Aboriginal Corporations are now specifically included as small businesses, having arguably being omitted previously; Previously prohibited action can be taken against insolvent, non-eligible tenants who breach a lease on or after 30 September, but with leniency provisions relating to insolvency also in force, this is very problematic; and Rent relief must be given as before, if requested by an eligible tenant, but calculations are month by month. If you found this article helpful, please consider providing a Google Review and/or like us on Facebook and LinkedIn. For help with COVID-19 regulations and Commercial Tenancies, contact Michael Paterson & Associates (08) 9443 5383 | www.patersons.com.au

11.01.2022 We are grateful that people in Perth and elsewhere in WA are now out of lockdown. Most of our staff are back in the office, but Michael still needs to self-isolate for another week, having been over to Sydney and back recently. We note that due to current COVID-19 restrictions, you will need to wear a mask while in our office, check in using the COVIDSafe app and socially distance.... We look forward to seeing you at our office soon!

09.01.2022 Do you have a Will? The results of a poll that I looked at last night estimated that that 55% of the adults in Western Australia have no Will, or are not sure if they have a Will. Of those adults without a Will, only about 9% will have one by the time they pass away, leaving half of the adults who pass away in WA each year doing so without making a Will. That inevitably makes life difficult for those they leave behind, let alone assets not going where the deceased would have preferred. There is nothing like the suggestion of mortality to make people think about the fact that they have not got a Will. At your next breaking-free-of-COVID dinner party, do a straw poll to see how the figures stack up with your friends, then introduce me to those who need a Will.

08.01.2022 IP Transfer Agreement This week I’ve been working on an Intellectual Property and know-how transfer agreement for a couple of old clients. They each want free-reign to exploit some technology that they have been developing for a couple of decades. I’ve warned them that the agreement is really just a memorandum of intent, it will not really be enforceable by either party, it relies on the good faith of both of them, and if there is a falling out, they will not be able to fall... back on the agreement, if they have a dispute, I will not be able to act for either of them, and most importantly from my point of view, they should not sue me if things go wrong! Nevertheless, documenting the arrangement they have will have benefits, so they wish to press ahead. If you found this article helpful, please consider providing a Google Review and/or like us on Facebook and LinkedIn. For help with non-binding memoranda of understanding, contact Michael Paterson & Associates (08) 9443 5383 | www.patersons.com.au

08.01.2022 Family Provision On Tuesday I attended a 4 hour seminar on legal issues concerning the Family Provision Act, which was rather timely, given that we have 4 such Supreme Court actions on at the moment which involve application under the Act. One is coming up for mediation next month. It involves a claim by a young granddaughter of the deceased, whose father predeceased his mother. She was given 2/15 by her grandmother, out of reasonably modest estate. Her uncle received the ba...lance, under the terms of a trust, of which his children are beneficiaries. She is seeking 2/5 of the estate. Unlike the applicants’ mother, her uncle is not well off and the children are both on the severe end of the autistic spectrum. One will probably require care for life. Our position is that the gift was more than adequate for the granddaughter’s maintenance, support, education and advancement, given her low need and the high need of the competing beneficiaries. If you found this article helpful, please consider providing a Google Review and/or like us on Facebook. For help and advice on issues with Family Provision claims contact Michael Paterson & Associates (08) 9443 5383 | www.patersons.com.au

07.01.2022 Regarding the recent COVID-19 lockdown in Western Australia: Our lawyers are currently working hard, remotely, or if they are in the office, they are complying with State Government COVID-19 guidelines. If you are worried about how your legal matter may be impacted by COVID-19, please contact us.... We hope that you stay safe during this challenging time.

06.01.2022 Powers of Attorney and Your Business A common business set up is to have a husband and wife as the shareholders and directors of a company, either trading in its own right, or as the trustee of a trust. Another is that a husband and wife are only the shareholders and directors of a company. In the first example, there is a power vacuum if that person becomes incapacitated. In the latter, there is a power vacuum if something happens to both of them at the same time, e.g. a car... accident. The power vacuum can be avoided with a simple power of attorney from the company to a trusted attorney, which only comes into operation in the event of both directors dying or otherwise lacking capacity, in the first case, or both directors dying or otherwise lacking capacity, in the second case. If you found this article helpful, please consider providing a Google Review and/or like us on Facebook. For help with powers of attorney and other estate planning documents contact Michael Paterson & Associates (08) 9443 5383 | www.patersons.com.au

05.01.2022 Buying and Selling Businesses Do you want to buy the shares in an existing company and run the risk of taking on skeletons that may be lurking in the closet, such as debts to the ATO and other creditors? Do you wish to incorporate a new company and buy the business from other company, leaving any baggage behind? What sort of entity will be buying the business?... Do you want to have a company with shares or a unit trust to make it easier to get investors? What special conditions do you need? If you, or anyone you know, needs assistance with negotiating business sale agreements, see Michael Paterson & Associates. Tel: (08) 9443 5383 | www.patersons.com.au

05.01.2022 Patent Dispute A new client was referred to me this week by a patent attorney. My client has been accused of infringing a patent, and US$500k is being sought. My client was not aware of the patent, but had sought to buy the product from the Taiwanese manufacturer, but was told that an exclusive deal with another wholesaler prevented it, so my client sourced a similar product from China. There is serious doubts about the validity of the patent, but even if there were a paten...t infringement, an account of profits would be less than US$50, so I requested full details of the alleged losses yesterday. The company involved owes my client more than US$50k as a result of credits due for other returned products, having bought over $1 million worth of products from the claimant, and has already offered to pay a royalty. The manufacture is not being pragmatic. My client is upset and has sourced alternative products from China, so he does not need to deal with this manufacturer anymore. Given that situation, I am hopeful of an amicable settlement with my client continuing to trade with this manufacturer. Call: (08) 9443 5383 | Email: [email protected] www.patersons.com.au

01.01.2022 From all of us at Michael Paterson & Associates we wish you a Happy New Year and all the best for 2021! Our office has now reopened today after the holiday season. For help with all your legal matters contact Michael Paterson & Associates (08) 9443 5383 | www.patersons.com.au