Entitlements to see a Will

The Succession Act now makes it clear that persons within specific categories are entitled to inspect or be given a copy of a deceased person’s Will. No longer is it left to the discretion of the executor or the estate solicitor as to who sees the Will.

If you fall within one of the categories listed below, then you are entitled to inspect or receive a copy of the last Will of a deceased person and earlier Wills where they are available. This is done at the expense of the person seeking to see or have a copy of the Will, so the estate solicitor is entitled to charge you a reasonable fee for attending to your request.

A solicitor or other person holding the Will cannot refuse your request. A solicitor doing so would likely face disciplinary action.
The categories are :-

  • any person named or referred to in the Will whether as a beneficiary or not;
  • any person named or referred to in an earlier Will as a beneficiary;
  • the surviving spouse, defacto partner (including same sex) or children of the deceased;
  • a parent or guardian of the deceased;
  • any person who would be entitled to a share in the estate if the deceased had not left a Will and including a parent or guardian of any minor who would have been entitled to a share had the deceased not left a Will;
  • any person who may have a lawful claim against the estate of the deceased, including creditors;
  • any person managing the affairs of the deceased under the NSW Trustee & Guardian Act 2009;
  • any attorney under an enduring power of attorney made by the deceased.

The importance of due diligence in your conveyance

You may have come across the article in the news lately stating that renowned actress Toni Collette was sued for damages for not completing a purchase of a house in Sydney.The legal action that followed resulted in the actress and her musician husband David Galafassi being ordered by the NSW Supreme Court to pay $815,000 in damages after pulling out of the purchase of a Paddington terrace house. The couple signed contracts to buy the house in September 2011 for $6 million but when it came time to complete the transaction, the couple were unable to complete the transaction, reportedly as they did not have the money at the time.

The house later sold to someone else for $5.5 million but the vendor sued the couple for the loss they suffered including a lower sale price, interest and land tax, and won.

This story outlines the need for true and accurate due diligence being conducted prior to you signing a contract to purchase a property. Click here to read the full news article.

Your lawyer can help to advise you of your rights and responsibilities as a potential purchaser.

Expect surprises when you buy off the plan

Expect surprises when you buy off the plan…. Lessons from a Green Square development

Eamon Duff at the Sydney Morning Herald in an article on 5 May 2013 has exposed an interesting situation where buyers of off-the plan luxury apartments in a proposed strata scheme in Waterloo are up in arms the proposed use of the ground floor component of the apartment block they are buying into at Green Square. You can read the full article here.
In short, Duff’s article indicates that 75% of the residential units in a development named VikingbyCrown were sold off the plan. The marketing material associated with the development suggested a luxury apartment block and artists drawings (including those still shown on the promotional website at vikingbycrown.com.au) show a car show room on the ground floor. An application has now been lodged with the council (which is currently being assessed by City of Sydney Council) to use the ground floor of the building for a multi purpose function centre and place of public worship. Duff’s article indicates some buyers are upset as this is not the use they envisaged as part of the luxury apartment scheme they were buying into.

This is a timely reminder of the potential pitfalls and risks you must be aware of when buying apartments off the plan. Standard off-the-plan contracts generally provide rights for purchasers to rescind if the apartment they are buying is materially different once constructed to that which was contemplated in the plans attached to the contract. However, these rights are usually limited to matters like a significant change in size or lay out. They do not generally cover a change in the overall scheme or use of another lot.

The matter of the proposed use of a commercial part of the apartment block you are buying into would not generally be something for which purchasers could exercise a right to rescind. In fact most off the plan contracts for larger strata and community title developments include special conditions disclosing that the developer will continue to develop the balance of the land and that the purchaser cannot object to or terminate the contract because of its activities and development on the balance of the land.
In addition, often the building is structured so the retail and commercial part is a separate strata scheme to the residential part. So the two strata schemes operate separately except for certain aspects which are governed by a Building Management Statement.

Some of the lessons for potential purchasers are:

  • Do your homework and understand the risks:
    – buying off the plan is tricky because you can’t see, touch or feel what you are buying.
    – understand that changes to the development of the balance of the scheme or land may occur and your contractual remedies if you don’t like these may be limited.
    – understand the timing and the developer’s rights to extend the time for completion – usually there is a sunset date by which the development must be completed and your purchase must be finalised but there are also usually rights for the vendor to extend that date in certain circumstances – make sure you understand these and they fit with your plans.
    – discuss with your lawyer the circumstances where you would not want to go through with the purchase and either make sure they are covered in your rescission rights in the contract or don’t proceed – each buyer will have different ‘deal breakers’.
  • Understand the structure of the scheme:
    – How is the strata building structured?
    – Is there one strata scheme for the whole building or is it a stratum subdivision?
    – Often where there will be residential apartments in the upper levels and commercial or retail space in the lower and ground floor levels a separate strata scheme is established for the residential part and for the commercial and retail part.
    – this sort of ‘mixed structure’ impacts on your ability as an owner of a residential apartment to control what happens in the commercial/retail part.
    – If it is a mixed structure there should be a Building Management Statement in place which sets out how the two strata schemes co-exist.
  • Have a look at other developments the developer has completed. Do you like them? Do the finishes look of good quality?
  • Get a copy of the full development consent for the scheme you are buying into and read it and have your lawyer read it.

Guaranteeing children’s loans

Recently I was again reminded of the dangers of guarantees and the potential consequences to the guarantors.

A son talked his mother and father into guaranteeing a loan from a bank. The son defaulted on the loan.

The bank called up the loan and there was litigation.

The parents maintained they did not understand that they could lose their home.

A settlement was negotiated whereby the parents transferred the home into the name of the bank but were given a right to occupy the property (their home) until the death of the survivor of them which has now happened. The bank has control of the sale of the property and the court order provided for their estate to receive 10% of the net proceeds of sale.

A lucky outcome for the parents- it could have been a lot worse!

Fair Work Commission orders minimum wage increase

On Monday, 3 June 2013, the Fair Work Commission decided to raise the minimum weekly wage of low paid workers $15.80 a week. From 1 July 2013, the new national minimum wage will be $622 a week, up from the current minimum of $606 a week. Employers need to be aware that they now have less than a month to ensure they are compliant with the new minimum wage.