Robert Stephen Lawyers in East Gosford, New South Wales, Australia | Property lawyer

Robert Stephen Lawyers

Locality: East Gosford, New South Wales, Australia

Address: Level 4/200 Central Coast Highway 2250 East Gosford, NSW, Australia

Website: http://robertstephenlawyers.com

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25.01.2022 CHOOSE EXECUTORS WISELY We recently acted for joint Executors to an Australian Will. One resided locally, the other resided in France. In order to apply for Probate of the Will it was necessary for both Executors to sign affidavits in support of the Probate Summons.... Communication with the France based Executor was very draw out in time, as it was necessary for the France based Deponent to attend upon a Notary Public to witness the signing of her Affidavit. This may have involved the need to obtain a certified translation at some expense. Instead it was decided to have the second Executor sign the renunciation of Probate. There was still prolonged delay in receiving back the signed Renunciation from the Executor in France due to delayed mail services caused by the COVID-19 pandemic. A Probate application which should have taken no more than eight weeks ended up taking approximately six months. It would be best for Testators to nominate Executors who are geographically close at hand because no-one ever knows what the future holds.

24.01.2022 Child Support Issues relating to all children fall under the Family Law Act, and are dealt with through The Family Court and Federal Circuit Court. This is the case for children from all types of relationships married, de facto, same sex couples or adoptive. The Family Law Act places parental responsibility on both parents, regardless of whether they separate or enter new relationships. This parental responsibility, according to sections 61B to 61DB of the Family Law Act, re...fers to the duties, powers, responsibilities and authority which parents have in relation to their children. Pre-Action Procedures Reaching a settlement out of court saves considerable time, distress and money. When applications for parenting orders are filed with either the Family Court or the Federal Circuit Court, both parties are ordered to undertake pre-action procedures including participation in a dispute resolution. A court will require a certificate from an accredited family dispute resolution practitioner before an application for parenting orders can be filed with the court. Pre-action procedures are a requirement except in circumstances where there is family violence, child abuse or urgency. Applying for Parenting Orders Parenting orders are legally binding arrangements which involve the following: Parental responsibility and decision-making With whom the child will live The time with which a child will be allowed to spend or communicate with the other parent Child maintenance orders (although these are less frequent because most children are now covered under the Child Support Scheme). If no settlement can be reached then an application for parenting orders must be submitted to either the Family Court of the Federal Circuit Court. A parenting order may also be applied for by: The child A grandparent Any other person concerned with the care and welfare of the child The decision is then made through a court hearing. The court bases its fundamental decision on what is in the best interest of the child or children. More information about how the court makes its decision can be found Section 60CA, Section 60CC and Section 64B of the Family Law Act 1975. Child Support: Under the Child Support (Assessment) Act, the primary carer of the child or children can make a claim for child support from the other parent. The Child Support Agency is responsible for administering your child support arrangements, and assessing the amount of support which should be provided. The decision is based on each parent's income, the number of children and their living arrangements. If the Child Support Agency makes an assessment which does not seem just or equitable, it is possible to apply for an independent review of the assessment by a Senior Case Officer (SCO). The review is determined through a hearing. See more

22.01.2022 FAILURE TO PREPARE A WILL We have recently been engaged to monitor the process of the administration of an estate of a person who died intestate (without a Will). He held some insubstantial bank accounts but two Sydney properties each valued in excess of one million dollars each. There was a mortgage of $80,000 over one of the properties allegedly used for repairs and maintenance of both properties. There were four sibling children of the deceased. Two of those proposed to be... appointed as Administrators and arranged their appointment under a Deed of Family Arrangement signed by all four siblings. Under the Deed one of the Administrators was to take ownership of one of the properties and the remaining property was to be sold and the assets distributed to the other three siblings. The solicitor for the Administrators has advised that due to the state of disrepair of the properties and the need for need for repairs/maintenance and other expenses there would be likely no residual benefit after sale of the second property to the three beneficiaries concerned. It was proposed that the three siblings waive their rights under the Deed of Family Arrangement and undertake not to file a Family Provision Act Claim. It was further proposed that another Deed of Family Arrangement be signed up by all four children, the Executor foregoing all rights to his mother’s estate. The problem being that the mother is still alive !!!! Outrageous, disrespectful and conniving thought it might be, the lesson is clear: CHOOSE YOUR EXECUTORS WISELY AND A CHILD RESIDING WITH YOU MAY NOT BE THE BEST CHOICE. ELDER ABUSE CAN LURK IN MANY UNEXPECTED CORNERS ! See more

17.01.2022 THE LAST MINUTE WILL As we never know what circumstances lie around the corner, the question as to when you should write your Will is sooner rather than later. This reality has been solidly brought home by the recent Corona Virus outbreak. Although this virus has had less worldwide effect then other illnesses, its rapid spread and its impact on the elderly has been remarkable. We are often called urgently to hospitals by clients who have left writing amendments to their Wills... or even entire Wills to the last minute. These last minute dashes to the hospital are not a solicitor’s preferred method of doing business as they are as heart-stopping for the lawyer as well as the testator and the relatives. On many occasions a testator has instructed on creating a Will within hours of death. Apart from the obvious problem that arises if the lawyer is called too late, there is an increased chance that an aggrieved beneficiary may successfully raise a challenge to the Will using an argument that the Testator had impeded mental capacity due to illness. It is far better to write your Will at a time when no-one can claim that you lacked testamentary capacity. It also allows you sufficient time to write a testamentary statement in support of the Will if that is so required. One further issue which often arises in a last minute Will is that of validity. A Will which is not properly witnessed may be held invalid. Public hospitals and many private institutions do not allow their staff to witness Wills. As executors and beneficiaries are precluded from witnessing a Will it may be impossible to locate a witness at the eleventh hour. The best advice is avoid the last minute Will problem by writing your Will NOW. See more

16.01.2022 REPRESENTATION - SPORTS PROFESSIONALS Tom, an A grade representative soccer player, had been charged under Section 66C(1) of the Crimes Act 1900(NSW) being the offence of having sexual intercourse with a person between the ages of 10 and 14. At the time he was 18. This happened in January 2008 and the matter was only listed for committal hearing in October 2009. A plea of not guilty had been entered and the player had a strong defence case. As is commonly known there is a ...Continue reading

16.01.2022 We are now trading as Central Coast Solicitors and have expanded to include fully electronic conveyancing (PEXA).

14.01.2022 WE REMAIN OPEN FOR BUSINESS To all our Facebook friends we are happy to advise that our office at 16 Adelaide Street, East Gosford remains open during the current virus restrictions. We observe the social distancing guidelines and hand sanitisation practices. Although we offer the convenience of an office location our services are entirely cloud based. As such we produce documents and conduct our conveyancing and estates business via the internet. There is no need for you to attend our office in order for you to engage our services. Our thoughts are with you at this time and we wish you and your family good health and that you all stay safe.

08.01.2022 THE CHEAP WILL We are constantly amazed by the complaints about the costs of legal services in preparing Wills, Powers of Attorney and Guardianship documents. There is no massive complaint about the cost of medical and hospital services because the public is generally served by bulk billing or else subsidized in medical and hospital services through the Medicare system. Without those subsidies, medical practices would not exist and the entire health care system would colla...Continue reading

06.01.2022 Please check out our new website for a full description of our services. http://robertstephenlawyers.com/

05.01.2022 LIVING WILLS A Living Will allows you to state your wishes on vital lifestyle issues Friends and family members are frequently kept alive and having to undergo medical procedures with little or no hope of recovery when the person would prefer to be allowed to pass on peacefully having lived a full life. A living will allows you to make decisions in advance about the range and extent of medical care and treatment procedures you wish to receive should you reach such a stage in... your life. A Living Will can determine what treatment you want, if any, should you: have an irreversible medical condition (illness, disease or injury); have an illness, disease or injury that leaves lasting disability where you could be, or will be, permanently dependent on others for care; have a terminal condition; require life sustaining procedures will serve only to artificially prolong the dying process; want to die naturally with only the administration of medication for comfort care and to be kept free of pain; sustain brain damage but remain alive but will have an existence with profound neurological impairment and dependence; require resuscitation or rehabilitation; choose to donate some of your bodily organs to help others. Another common use of a Living Will is for a person to instruct their loved ones that they don't want to go into a nursing home but want to die peacefully in their own home. It can outline how this is done and under what circumstances the person is transferred to nursing home or hospital care. A Living Will puts your personal values and beliefs into words to your loved ones. A Living Will is a personal care health directive, done by statutory declaration which we prepare for you. A Living Will provides you with a greater peace of mind - for you, your family and your doctors. It will ensure that the spirit of your wishes is considered with treatment decisions that are made. Importantly, it takes the pressure off your loved ones having to make these decisions for you. For more information feel free to contact us.

04.01.2022 BINDING FINANCIAL AGREEMENTS Binding Financial Agreements (FA’s) were introduced into the Family Law Act in 2000. These agreements are tricky and may not be as ...enforceable as the parties may have hoped. The Courts take a firm approach to them in that they must strictly accord with technical requirements of the Act. The history of that position is briefly explained by consideration of some court cases for example in J and J( 2006) Fam CA 442 where certificates of independent advice were in the wrong form and the FA held invalid in consequence or Millington and Millington (2007) Fam CA 687 where one party did not hold the original FA and the other party a copy and inconsequence the FA was held invalid. These defects were interpreted more leniently by the decisions in Black and Black (2006) 36 Fam LR 680 which found satisfaction if the purpose of the legislation was met or Ruzic (2007) FamLR 473 where invalid solicitors’certificates were subsequently replaced with valid ones. However, Black and Black (2008)FamCAFC 7 being a decision of the full court reversed that trend upholding a literal approach. That case is now the guiding judgment. From January 2010 amendments to Part VIIIA introduced by the Federal Justice System Amendment (Efficiency Measures) Act sought to allow Courts leniency in interpretation of FA’s which contained technical flaws. Despite that the full court in Kostres and Kostres (2009) FamCAFC 222 found that a court, despite strict compliance of an FA with technical requirements may still set aside an FA. The court found that the terms of the agreement themselves were imprecise and ambiguous so much so that the parties themselves had disagreement over significant terms of the FA. The full court found it could not enforce the agreement at all and sent it back to another federal Magistrate for re-hearing which would have been heard on the basis that the FA did not exist as a legal document. In other words the Federal Magistrate was obliged to hear the matter under equitable principles of the family law. The above decisions establish that it is not sufficient to attempt to avoid future court intervention by simply creating an FA. One must ensure that it is in technical compliance with the legislation (providing the purpose of the legislation is met) and also that it is capable of unambiguous interpretation by the parties and others. #familylaw #familylawyercentralcoast #centralcoastfamilylawyer

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01.01.2022 WHY YOU SHOULD HAVE A WILL ? People often ask us why should I write a Will ? Is it worth the cost ? The answer to both of those questions is: Yes, definitely. You may have a house and bank accounts worth several hundred thousand dollars. For the sake of a few hundred dollars you can ensure that your assets can go exactly where you want them to go. Otherwise you might find your relative are embroiled in costly court litigation after you die. Even worse your estate could end... up passing to the State. Some examples from our files provide a very sound lesson about how the lack of a Will can cause disaster. Case study 1 A client (let’s call him John) was brought up by his step-father (lets call him Frank). John had no other living relatives but he married and had a family of two sons. He was devoted to his step-dad and almost every fortnight for twenty years he would take his family to visit him. John would go fishing with him and they would go to the local club together while John’s wife helped clean up Frank’s house. John would mow the lawn and maintain the residence (which was a manufactured home) in a retirement village. John occasionally asked Frank if he had written a Will but Frank would say: I will get around to it. Frank died without leaving a Will. John could not inherit Frank’s assets as he, as a stepson, has no rights under the laws of this State. He is not even eligible to apply for Administration of the estate. John was not even able to apply to the Court as the estate was too small. In the end, the State will claim the assets. If Frank had written a Will the story would have been entirely different. Case study 2 Jillian lived with her brother Jim. Jim had had a daughter (Rachel) to his wife but they divorced and she left him taking the child with her. Jim did not see or hear from the wife or child ever again. Jillian cared for Jim in his decline and moved into a house with him which they shared for about ten years before his death. Jillian owned three fifths of the title to the house and Jim owned two fifths of the title. She had cared for him and provided for him and paid for all the costs of maintaining the house. She pleaded with Jim to write a Will but he refused. When he died Jillian made application for Administration of his Estate, but this application was rejected by the Supreme Court registry on the basis that she had no eligibility (due to the possible existence of Rachel whom no-one had seen or heard from for over thirty years). A costly exercise has been undertaken to locate Rachel. Her full name has been determined but her whereabouts are unknown and attempts to locate her have been unsuccessful. She may even be dead. What lies ahead is a costly exercise for Jillian in making application to a judge of the Supreme Court for judicial directions. Jillian can do nothing with Jim’s bank account or the house as Jim is still on title as a joint owner. If Jim had written a Will the story would have been entirely different. See more

01.01.2022 Sometimes you receive a testimonial you just have to post !