Evidence is information that the court looks at in understanding and ultimately determining a matter. In a family law matter there a number of different pieces of evidence that the court will look to: Affidavits: Affidavits by you and possibly supporting witnesses. Affidavits are sworn written statements of fact. Affidavits are used to support your wishes as to what Orders the court can make. Your solicitor will help you draft your and any supporting affidavits. Your affidavit must comply with court evidence rules. Anytime you submit evidence to the court there are important considerations to take into account regarding your matter from both a strategic and practical perspective. Therefore it is very important to talk to a solicitor before submitting anything to the court. Valuations: Valuations of any property, businesses, chattels and superannuation may be required from the court. The court has special rules about who can value assets and the process…

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If you think that you have been left out of a Will, the Will maker may not have made ‘adequate provision’. In these cases the court can step in and make an award from the estate. A case (Brennan v Mansfield & Ors [2013] SASC 83) was one of the first cases of a will for a person in a same sex relationship. But what makes the decision more interesting is the discussion about what amounts to “adequate provision”. What is considered to be ‘adequate provision’ is dependent upon a variety of factors including the size of the estate, the terms of the deceased’s will, the nature of the relationship between the deceased and the applicant, other beneficiaries of the estate, the applicant’s financial circumstances and the deceased’s intentions. If you are wanting to draft or redraft a will or you believe that you have been left out of a…

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It is a comforting thought to know that there are arrangements in place for your children should you suddenly pass away. We have a lot of new families who ask us to write up their Wills after their first child arrives. It is great assurance to know that your intentions are clearly written down should something unexpected happen. You can appoint a person over the age of 18 to be a guardian for your children. This person is referred to as a ‘testamentary guardian’. The appointment of a guardian has to be done in accordance with the laws of the state of territory in which you reside otherwise it will be ineffective. There are more difficulties to overcome if you are separated from the child’s other parent and you would like to appoint someone else apart from the surviving parent as the children’s guardian. Alongside giving them responsibility to care…

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If you have received an inheritance prior to separation then it will generally be included in the asset pool as the court looks at the assets at the time the matter comes before the court. There are of course exceptions to this, for example if you have received your inheritance in the form of a testamentary trust you may be able to exclude this from the asset pool. If you are would like to protect your inheritance or are worried about the effect it may have on your property settlement you should contact one of our family law solicitors to discuss the options available to you.

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A trust is a way of controlling and protecting assets. There is a legal relationship between the trustee (who administers the trust) and the beneficiary (the person who receive the money or assets). The Trustee has a legal obligation to look after the trust, this can often mean investing or using the money wisely with the beneficiary’s interests in mind. The person who sets up the trust is called the settlor. This person is usually unrelated to the party or family and will not be a beneficiary to the trust. If a trust is established through a Will the settlor is called the testator. The terms and conditions of the trust are set on in a Trust Deed. This is a legal document which specifies; Who the Trustee is Who are the beneficiaries. When and how the beneficiaries are to receive benefits from the trust. What the trustee must consider…

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A family trust (also known as a discretionary trust) is a way to control and protect a family’s assets and/or conduct a family business. A trust is usually set up by a member of the family and can be used to protect the family group assets from liabilities, a family trust also allows families to pass on the group assets to future generations relatively easily. Other benefits of having a family trust include certain tax benefits, asset protection and the clarity of avoiding challenges against certain assets in the event of the death of a member of the trust. The terms and conditions of trust, including a list of its beneficiaries, are written up in the form of a deed. Once the deed has been drafted and then finalised, the trustee or trustees will then sign the deed. Once signed the trustees are legally responsible for managing the trust’s assets….

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Unlike the house or the family farm, superannuation is not asset that you can just leave to someone in your will. Instead it is a trust. For some superannuation interests, you can chose who gets your superannuation in the event of your death through a death benefit nomination. The rules of a death benefit nomination are provided by your superannuation fund. A nomination can be either a non-binding or binding nomination. In the event that a death benefit nomination is not provided or not binding, who receives your superannuation is up to the discretion of the trustee. If you have a self-managed super fund this could be a more complicated process and you should speak to a solicitor to make sure that your nomination is legally binding. Whilst what your Will says about your superannuation may have some influence, if the issue was to go to court, it is important…

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Getting an estate plan is an important step in making sure that your legal and financial affairs are in order. Having a solid estate plan means that in the event of your death, your finances and assets are distributed in line with your wishes. If you don’t’ have an estate plan your estate will be distributed in line with the rules of intestacy. What is an estate plan? An estate plan involves the following documents: Will – This is a document which sets out how you would like your assets distributed in the event of your death. A Will can be a very straight forward or a very complicated document depending on the size and complexity of your estate and how comprehensive you would like your will to be. Power of Attorney – A power of attorney is a document which appoints another person as your decision maker in the…

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