What information do I need to put into my will?

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What information do I need to put into my will?

In Part 1 of this article we discussed the vital importance of making a will, and the potentially inequitable repercussions for your loved ones if you fail to do so. In this part, we will be discussing some of the key information that you may wish to include in your will, as well as some commonly problematic areas that occur when writing a will.

 

As discussed previously, your will describes how you wish for your estate to be distributed when you die. The executor then takes your will to the Probate Office who determines whether or not they will accept the will. If the will is accepted, the executor can then begin to deal with your estate as per your wishes. The ramifications of your will being rejected can be huge, with the potential for enormous legal costs that will eat away significant amounts of your estate. Accordingly, as you will no longer be around to clarify any ambiguities or errors in your will if a problem is found, it is essential that your will is as specific, accurate and current as possible when you pass away. While it is not mandatory to enlist the help of a lawyer for writing a will (you may do it yourself,) the requirement for certain formalities to be adhered to, as well as the level of detail that is required, mean that it is a risky proposition to ever use a DIY will kit.

 

What possessions can I put into my will?

Broadly speaking, nearly anything that you own can be put into a will. This includes:

-                Money;

-                Particular chattels (such as paintings, books or furniture);

-                Real property (land). The exception to this is if you own land as a joint tenant with another. In this circumstance, your interest in the land will be automatically transferred to the remaining owner;

-                Motor vehicles;

-                Shares in a company;

-                Everything else (which is not expressly stated in the will); and

-                The guardianship of your children.

It is important to note that superannuation cannot be bequeathed under a will. You need to get into contact with your super provider in order to determine who will receive your super upon your death.

 

Who can receive gifts under my will?

You have a wide discretion to leave gifts under your will to whomever you choose. This can include dependents, distant relatives, charities, friends and non-for-profit organisations. Some things to keep in mind while you are considering the distribution of your estate include:

-                If any particular party is left out of the will when it would be expected they would receive a share of your assets (ie. a child or spouse,) it is essential to declare the reasons for leaving them out;

-                Ensuring your dependents are left enough to survive on. If you do not leave them enough, they may take legal action to claim more of your assets;

-                Assets that are left to an individual under the age of 18 must be held in trust until they turn 18, unless the assets are used for their benefit (such as their education.)

 

What about my debts?

Unfortunately, when you die your assets are not the only things that you leave behind. Any unpaid debts that may be attributed to you will need to be paid from your estate. Often it is advisable to include a clause into your will that states you wish for your unpaid debts to be paid from the estate before your assets are distributed. This ensures that your assets remain unencumbered when the beneficiaries of your will inherit them.

 

Conclusion

An invalid will may create disastrous and damaging circumstances for the loved ones of a deceased person. The most failsafe way to create a watertight will is to have a lawyer prepare one for you, in strict accordance with your wishes. This can ensure that you have peace of mind regarding the management of your estate after your death. Part 3 of this article will discuss some of the most recent changes to the legal landscape around challenging a will. If you would like to make a will or have any questions about this article, please get in contact with us on 03 8877 6888.

To read Part 1 of this article for more general information about why it is essential to have a will, click http://www.mahons.com.au/news/2016/5/11/wills-part-1

Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.

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Why You Need to Make a Will and Keep it Updated

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Why You Need to Make a Will and Keep it Updated

Most people are uncomfortable planning for the inevitable end to their lives. Perhaps this goes some way to explaining why many individuals never create a will, causing further anguish and difficulty for their families when they pass away, despite the relative ease of making one. This article details the importance of creating a will and the occasions that it should be updated, while Part 2 will focus on some important information that you should include in your will for it to be valid.

 

A will is a legal document that distributes your assets (your estate) to your beneficiaries when you die. Any person over the age of 18 and with the mental capacity to understand their actions can make a will. Your will also appoints an executor, the person who manages your estate (and distributes your assets) when you die. An executor can be anyone, from a lawyer, to an accountant, to a close family friend. However, due to the amount of power that the executor is given to manage your estate, it is important to choose somebody that you trust and believe will do a competent job.

 

What if I don’t have a will?

If you choose not to make a will, your assets will be distributed according to a formula set out by the law, which may not reflect the distribution you would have chosen. Other disadvantages of not making your own will include:

·       Partners, stepchildren and charities may not receive anything.

·       You have no control over who will be the guardian of your children.

·       Your estate may not be handled in the most tax-advantageous way.

·       The family home may need to be sold in order to provide for your children.

If you wish to retain control of what happens to your assets when you die, it is essential to create a will.

 

When should I update my will?

Generally speaking, it is a good idea to review your will any time there is a change in the circumstances around any of the parties named in your will (beneficiaries or executors). This will ensure that there is no ambiguity surrounded how your will should be administered, or what should be done with certain assets (ie, if a beneficiary passes away before you). In particular, you should update your will if:

·       You get married. A will made prior to a marriage is no longer valid after the marriage.

·       You are separated from your spouse (but not divorced.) Any gifts under your will will not be revoked if you are merely separated. Accordingly, if you wish to remove your spouse from your will before your divorce, you need to create a new will.

·       You are divorced. While any gifts under a previous will are automatically revoked when you get divorced, you should still update your will by redistributing those gifts to different beneficiaries. This minimizes chance of a challenge to your will.

 

Conclusion

Creating a will is essential if you wish to control how you provide for your family and friends when you die. However, there are many strict legal requirements that must be followed in order for your will to be valid. Part 2 of this article will discuss some of the important considerations and requirements that you should contemplate when making your will. If you would like to make a will or have any questions about this article, please get in contact with us on 03 8877 6888.

To read Part 2 of this article, which includes some important information that you should consider including into your will, click http://www.mahons.com.au/news/2016/5/12/what-information-do-i-need-to-put-into-my-will

Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.

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Update on Sexting Laws in Victoria

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Update on Sexting Laws in Victoria

Modern technology has revolutionised the way that we communicate with one another. The ability to stay connected through the internet, share moments and experiences through phones, and reach a wide variety of people instantaneously are but a few of the benefits of technology. However with this increased freedom to communicate, individuals are also exposed to far greater risks. Sending an explicit picture or video (‘sexting’) with another person may now be saved and shared with others. This has created problems that the law never anticipated, as has the prevalence of people under 18 using mobile technology to sext. Until recently the law in Victoria had not caught up with the rapid rise of technology, but recent changes have addressed some of the common scenarios that arise.

 

Generally speaking, there is no illegal activity when consenting adults share intimate, explicit or pornographic images of themselves with one another. However, if one of the parties is under 18 years of age, or the image(s) are then shared with other people without the consent of the sender, the law has been broken.

 

Child pornography law in Victoria

Under Victorian law, you can be charged with the possession of child pornography if you have received an explicit or indecent image of a person less than 18 years of age, and may be charged with producing child pornography if you have taken the image of the minor yourself. Individuals found guilty of these offences can face up to 5 years imprisonment for possessing child pornography, or 10 years for producing it. Under the law previously, individuals under 18 could be found guilty of these offences (even if the images were of themselves), which also included mandatory placement on the sexual offenders register. This had dire effects on individual's employment prospects, as well as their ability to have contact with children in the future. To tackle this inequity, recent updates to the law have provided the following exceptions.

You will not be prosecuted for child pornography if:

·       The images are of yourself; or

·       You are under 18 years of age and the person(s) in the image is no more than 2 years younger than you.

Individuals under 18 years of age may now also avoid being placed on the sexual offenders register, although it is left to the discretion of the judge. Individuals 18 years of age or older who are found guilty of a child pornography offence must be placed on the register.

 

Unauthorised sharing of explicit images, or ‘revenge porn.’

Recent cases in courtrooms across Australia have shed light on the common practice of individuals intentionally sharing explicit images that they have been sent by someone with other people, without the consent of the original sender. This often (but not exclusively) occurs when a relationship breaks down and is used as a way to punish or humiliate the other party. Unauthorised sharing may include:

·       Sending or transmitting the image to someone else; or

·       Exhibiting the image; or

·       Making the image available for access to others (ie. posting the image online.)

The penalty for sharing an explicit image of another without their consent carries a maximum penalty of 2 years imprisonment. A maximum of 1 year imprisonment may be imposed for threatening to share an explicit image that has been received.

 

Conclusion

Technology has provided us with a fantastic means of improving our lives, connectedness, and ability to share information. However, it has also put our privacy at risk in a way that it has never before. If any of this information applies to you or your current situation, please get in contact with us on 03 8877 6888.

Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.

 

 

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Returning, Replacing or Repairing Consumer Goods

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Returning, Replacing or Repairing Consumer Goods

Purchasing clothes, electronics, furniture and other household products are a daily occurrence for most people, but many of us have no idea about what to do in the event that something goes wrong and we want a product repaired, returned or replaced. The Australian Consumer Law provides many protections to consumers who purchase products that are under $40,000. The aim of this article is to inform you of your rights - in case you ever find yourself needing to return, repair or replace a product you have purchased.

  

When you may request a return, replacement or repair.

It is often the case that you will purchase a product and take it home only to realise that:

-        it is damaged;

-        it is not the same as the display model;

-        it is poor quality;

-        it doesn’t do what the salesperson said it would;

-        you have changed your mind and don’t want it any more;

-        you have found it cheaper somewhere else. 

In which of these situations may you repair, replace or refund the product?

 

Major or Minor Faults

Generally, a product may only be repaired, replaced or refunded in the event that it has either a major or a minor fault. Depending on whether a fault in the product is determined to be major or minor, both you and the seller of the product have different actions that you may take.

 A major fault is found if:

-        it would render the product unsafe;

-        it would have stopped you buying the product in the first place;

-        the product significantly differs from the description;

-        the product doesn’t do what the packaging/salesperson said it would.  

If the product is subject to a major fault, then you may decide to:

-        return the product and receive a full refund; or

-        keep the product, and receive compensation for the difference in the value; or

-        replace the product.

If the product is subject to a minor fault, the seller may choose to repair the product rather than replace or refund it.

 

If you are told you must have a receipt to return, replace or repair the product.

Many stores will attempt to stop you returning, replacing or repairing an item if you do not have the receipt from the original purchase. While it always a good idea to store your receipts in case you find yourself in a situation such as this, presentation of any proof of purchase will be sufficient to show you are entitled to a return, replacement or repair. Some alternatives to a receipt include:

-        a credit/debit card statement;

-        a photograph of the receipt;

-        a barcode that is linked with the sellers sales records;

-        an alternative reference number (eg. one received when making an internet payment).

If you are told products on sale may not be returned, replaced or repaired.

Sellers often state that products on sale are exempt from any returns, replacements or repairs. Regardless of store policy (eg, a sign that states ‘no returns on sale items’), the law makes no differentiation between products that are on sale and those that are not. Accordingly, you are entitled to a return, replacement or repair under the same conditions as above even if you purchased the product on sale.

When you may not request a return, replace or repair.

There are certain situations in which you may not request a return, replacement or repair.  These include:

-        If you have simply changed your mind and no longer want the product.

-        If you have found the product cheaper somewhere else.

-        If you knew (or were told) of the faults in the product when you purchased it.

-        If you misused the product.

-        If you purchased the item at an auction.

-        If you purchased the item at a private sale (eg, a garage sale).

 

Remember, businesses are legally obliged to provide an appropriate remedy in the circumstance that the product contains a major or minor fault. If they refuse to do so, you may report the business to the ACCC, or alternatively get in contact with us on 03 8877 6888.

Disclaimer: This article contains general information only and is not intended to be a substitute for legal advice.

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Update on police powers in Victoria

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Update on police powers in Victoria

It has been two months since Victoria Police used its “special powers” to search members of the public for illegal weapons in the south-eastern suburb of Dandenong. In light of such powers, the aim of this article is to take you through the recent increase in police powers and some of the rights you have at law.

Power to ask for your personal information

The police have a general power to ask for your name and address.

There are a number of reasons that empower police to ask for this information, such as:

  • when you are believed to have committed a crime;
  • about to break the law;
  • stopped over for a breath test;
  • you have witnessed a crime; or
  • the police believe you are carrying an illegal weapon.

Unless the police have a reason, a person can choose not to give his or her personal details. In any case, the police should tell you why they require your details and once that reason is provided you must comply with the request.

Power to question you

You are either a witness or a suspect at this stage. If you are a witness and refuse to provide information in certain circumstances, you can be charged by the police. Accordingly, your right to silence does not apply in all situations and you should ask to speak with a lawyer if you are unsure about police questioning. You would also want to know whether the police consider you to be a suspect and whether your rights have been read to you at that stage.

Power to search you, without a warrant too!

So you walk into a public place such as a train station or a shop and the police approach you. You are informed that the police will conduct a frisk or pat-down search immediately. The first question that comes to mind is “Can I object?”

In such situations, the answer depends on a variety of factors including whether:

  • the public place is located in a ‘designated area’
  • the police reasonably suspect that you have illegal drugs, an illegal weapon or an item that can explode or ignite;
  • you are in a public place where crime usually happens.

The lesson to be learnt from the above example is that the police now have much broader powers. Such powers can even extend to searches of your vehicle, even when you are not in it.

The effect of the powers on you

In light of the above powers, the need for a warrant has become less significant. While this does not mean you do not have any rights at law, the main message is that you must be a lot more alert and vigilant. Accordingly, if you approached or questioned by the police and you are unsure what to do, ask to speak with a lawyer.

Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.

 

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