Over my years as a solicitor I have had the opportunity of listening to many clients telling me about how they understand the law and how their matter should be handled.
The myths and legends that seem to circulate through the community year after year are often very amusing from my point of view but unfortunately not so much from the client’s perspective, especially as is the case with most of these Myths, they are usually even a long long way from reality.
Here are just a few chestnuts:
No 1. If you leave someone a token cash gift in your Will, it prevents them from contesting or challenging your Will.
Oh, if it were only that easy to prevent a claim against your Estate.
The reality is, that provided you fall into the category known as ‘eligible people’ you have a legal right to contest a Will and make a claim against the Estate.
There is however, a big difference between being able to make a claim against an Estate and actually being successful with such a claim.
Many clients have asked me to prepare them a Will that cannot be contested.
Unfortunately, this is not possible and unlike my favourite cartoon superhero Batfink, Wills do not have a shield of steel.
Most people, when they are making their Will, try to be as fair and reasonable as possible when it comes to how to divide and gift the assets of their estate but the bottom line is that an “eligible person” always has the right to challenge a Will, no matter how fair and reasonable the provisions of the Will may seem.
However it is not all bad news for Will makers.
It is an extremely expensive exercise to contest a will, running into many ten’s of thousand’s of dollars and most lawyers and barristers will require payment whether you are successful or not.
Furthermore, the Judges in Equity Division of the Supreme Court of NSW, which is the jurisdiction these types of proceedings are held, are becoming increasingly more likely to exercise their discretion when it
comes time to deciding which party should be paying the legal costs associated with the proceedings.
In the past, Judges would be more inclined to make the Estate pay both sides legal costs, despite the outcome of the proceedings.
This is not necessarily the case now. Even if your claim is successful and you do receive more from the Estate than was provided for under the Will, you may still be ordered to contribute to the Estate’s legal cost.
The Judge is certainly very much more inclined to punish a frivolous or vexatious application with a costs order thereby deterring the majority of the meritless or weaker claims.
From a practical point of view, the only real way to prevent someone challenging your Will is by ensuring your Estate is not worth contesting. In other words, makes sure you really enjoy your later years!!
No. 2 If you lose your driver’s licence and you need it for your job, you can apply for a “work licence”
Unfortunately there is no such thing as a “work licence”.
If you are a P plate driver and your licence is suspended for 3 months due to loss of demerit points, you can appeal the suspension in the Local Court and seek a shorter period of suspension.
Subject to your driving history, your need for a licence and the circumstances of the offence/s involved in your loss of demerit points, the Magistrate has some discretion and can reduce the 3 month suspension or waive it completely.
It is my experience that Magistrates are sometimes prepared to reduce the period of suspension but very rarely will they waive the whole 3 months.
They will always use the line, “Holding a driver’s licence is a privilege not a right”, which is 100% true and correct.
If you are an unrestricted driver, you have the right to seek the Magistrate’s discretion under s10 of the Crimes (Sentencing Procedure) Act 1999.
Once again your driving history and the circumstances of the offence will be crucial to your success.
No. 3 Your spouse/partner will get the house if you leave the matrimonial home due to a marriage/relationship breakdown.
The old principle of possession being 9/10’s of the law certainly does not apply to Family Law property settlements.
The physical possession of property (including and most particularly the former matrimonial home) has absolutely no relevance to your entitlements under a property settlement
From a legal perspective, it is possible for parties to be legally separated but continue to live under the same roof.
This may be necessary for a variety of reasons not the least being the costs and availability of suitable alternative accommodation.
There are many factors that are considered when determining who gets what in a property settlement. These include but are not limited to:
– The length of the marriage;
– Children;
– The financial and non financial contributions made by each party towards the assets of the marriage;
– The financial resourses of each party.
So, if the circumstances are that you need to get out of the matrimonial home and you have the ability to do so, then do it.