Website protection

Your website is a vital asset and tool for the ongoing success of your business. There is nothing worse than Googling your business and finding out that somebody on the internet has copied it. Don’t worry you can protect your website by following these steps:

  1. Check with your IT service provider and/or web developer to see whether there is any way to prevent the copying of your website.
  2. Keep an accurate record of your website’s creation and development, both in hard copy and electronic form, which documents:
    1. the creation of the ideas behind the website;
    2. the creation of the look and feel;
    3. the drafting and preparation of the content of the website;
    4. the creation of your brand.
  3. Check out your website’s history and copy it from the internet archive wayback machine (http://archive.org/)
  4. Regularly search the internet using Google or another internet web-search engine to ensure that no one is copying the content from your website.
  5. If you find that your website has been copied, then you need to:
    1. Make a complete copy, both electronically and in hard copy, of your website on the day that you find the mirror site;
    2. Make a complete copy of the mirror site, both electronically and in hard copy and itemise each breach.
    3. Check out the mirror site on the internet archive wayback machine.
    4. Do a ‘who is’ search to identify who is the licence holder of that website;
    5. Find out who the web hosting company is, and whether there is a take-down notice style mechanism available through the web-hosting company or elsewhere under the local law which governs the operation of the mirror site.
    6. Find out if the owner of the mirror site has any presence or assets where you are located (i.e. in Australia), and also where it is located if overseas.
    7. Gather all your information and forward it to me to review so I can start the process to takedown the mirror site.

Recently a client was thinking of expanding his business overseas into the Asian market. He found that a competitor based in Singapore had set up a website which was a mirror image of his business’s website, save for the business name. Naturally, our client was incensed by his competitor’s actions, copied both his site and the mirror site and sent it to us for immediate action. In this instance, following the tips above and a little legal mumbo-jumbo, we were able to have that website taken down and replaced within 7 days with the website for the competitor which was no longer a mirror image of our client’s website.

Wills and testamentary capacity

Many court cases relating to Wills centre around the capacity of the deceased person. A person is said to lack testamentary capacity if they do not understand or comprehend what they are doing. In those circumstances that person is incapable of making or changing a Will.

An experienced solicitor, when confronted with a situation where there is doubt about a client’s testamentary capacity, will normally interview the client alone and go through a series of question designed to determine whether or not the person does have sufficient understanding to make or change a Will. Some times the advice of a medical practitioner will be sought to further add to the evidence of the person’s testamentary capacity.

The same procedure is normally adopted where the person wants to make a power of attorney or to appoint an enduring guardian.

In the case of Wills, the Supreme Court does have power to authorise the making of a Will by a person who lacks testamentary capacity. If a Court order is made, the Will is signed by the Registrar of the Court. This is a very complex procedure and rarely used.

If there is any doubt about whether a person lacks the testamentary capacity to make or change a Will, it is wise to seek competent legal advice. By doing so, protracted and expensive litigation after the person dies can sometimes be avoided.

Funeral plans and prepaid funerals – why bother?

You will no doubt have seen many advertisements on TV or elsewhere for funeral products.

Many people deprive themselves of much needed funds during their lifetime by making payments on funeral plans, funeral insurance and pre paid funerals. Having administered over 1000 estates I cannot see the point of making these payments.

The law states that the payment of funeral expenses receives top priority for payment out of a deceased estate. This applies even in an insolvent estate where there are insufficient assets to pay all of the deceased’s debts. Usually, there will be adequate assets to cover the entire cost of a funeral even if creditors do not get paid.

In my experience, most people die with adequate funds in a bank account to cover the cost of the funeral. The executor simply needs to approach the bank with proof of death and a funeral account and a cheque will be provided to pay the funeral director. We regularly assist our clients by doing this for them.

Guarantees and deceased estates

It is not uncommon for parents to guarantee loans for children. Unfortunately doing so can have very serious consequences where a person dies and the liability under the guarantee has not been discharged.

If a husband and wife both have given the guarantee, then the survivor will remain liable. However the estate of the deceased guarantor will also be liable under the guarantee.
A liability of this nature is known as a “contingent liability”. In other words, the guarantor does not have to pay what is guaranteed unless and until there is a breach of the loan by the borrower. If that happens then the liability under the guarantee is crystallised and the liability must be paid by the guarantor.

The estate of the deceased person remains potentially liable under the guarantee until such time as the estate is released from that potential liability, or the loan is repaid. It is often not easy to obtain a release of a guarantee and this means that there can be extensive delays in finalising a deceased person’s estate.

When making Wills decisions have to be made in relation to any guarantees that are in place. Sometimes these can be difficult decisions, e.g., how does the person want the guarantee dealt with in their Will, bearing in mind that the actual liability and will only arise at some time in the future if and when there is a default under the loan.
The existence of guarantees are yet another reason why it is important, when making a Will, to obtain sound legal advice.

Planning for incapacity

It is well known that Australia now has an ageing population. A great benefit of this and our advancements in Science is that Australians are far more likely to live to a ripe old age. Unfortunately, they are also more likely to develop some form of incapacity as part of the ageing process. If incapacity affects a person, someone else will need to assist them to manage their affairs.

Nobody knows if or when incapacity may affect them. Therefore it is imperative to plan ahead for and put the appropriate legal measures in place to allow a trusted person to manage your affairs in the event of incapacity. This documentation includes putting in place an Enduring Power of Attorney, which appoints someone that you trust to look after your legal & financial affairs, and also an Enduring Guardianship, which appoints someone that you trust to look after your medical & lifestyle decisions.

The number of people that do not have these vital documents in place is astounding. Most people assume that their spouse or children will automatically be able to take over and manage their affairs if they become unwell and lose capacity. This is not actually the case and can be highlighted in the following example:

John & Jane Doe are married, are retired and have 2 adult children. They own their family home as joint tenants and have separate bank accounts. Unfortunately, John (who is now 75) is struck with Dementia and for his own wellbeing is placed in a Nursing Home. Jane still lives in the family home but feels that it is too large for her to manage on her own and would like to downsize. Unfortunately John does not have an Enduring Power of Attorney or Enduring Guardianship in place.

What this means for Jane is that she cannot sell the property without an Application to the Guardianship Tribunal as she does not have the legal right to sign on John’s behalf in order to sell the property. Jane also may not be able to access John’s bank accounts to pay for his expenses. Jane and the children are also not able to make medical decisions for John without an application to the Guardianship Tribunal.

If John had planned ahead and put in place an Enduring Power of Attorney (to look after his legal & financial affairs) and an Enduring Guardianship (to look after his medical & lifestyle decisions) the strain on his family would have been greatly alleviated.

Enduring Powers of Attorney & Enduring Guardianships are not just for the elderly. Everyone above the age of 18 should have these documents in place because you never know when incapacity can strike. Accidents and illnesses are also a cause of incapacity, not just old age. These documents can often be compared to “insurance policies”. Most people insure their homes, cars and valuables and hope that nothing ever happens to them. It is the same with Enduring Powers of Attorney and Enduring Guardianships: you put them in place and hope that they never need to be used, but they are in place just in case.

Pre-sentence reports

Where the Magistrate is considering the appropriateness of imprisonment on sentence, commonly a Pre-Sentence Report is ordered. It is prepared by the NSW Probation and Parole Service.

This report will assist the magistrate in determining sentence and will cover such issues as family history, education, employment and attitude towards the offence. The report is made available to us at court on the sentence date. The reports fall into two general categories:

  • those prepared during a pre-sentence adjournment, which are written and provide considerable detail; and
  • those produced at court at short notice, which are either oral or in writing and concentrate on the availability of particular sentencing options and your suitability for them.

If your matter is adjourned for the preparation of a detailed report, this is an ideal opportunity for you to demonstrate that you are motivated and well organised in providing to the officer:

  • Your full employment history including past employers contact details and the dates that you were employed with each;
  • Your current pay slip;
  • Details of your family including age and occupation and contact details of each family member;
  • Any educational certificates and up-to-date references;
  • Community involvement links such as membership of associations/service clubs (eg Rotary), charities, church/school fundraising activities, or any other public-minded endeavour;
  • What efforts and lifestyle changes (constructive use of your spare time through hobbies, sport, recreation and fitness) you have made to avoid the risk of re-offending;
  • Any other information that you consider helpful in the officer’s preparation of the report, you are welcome to provide.

Although the recommendations made by the officer are not binding on the court, they can be persuasive on the court’s determination of the appropriate sentence. You must make an appointment with the Probation Officer within 7 days of the court ordering the Pre-Sentence Report and it is vital that the appointment be kept.