The Vibe

Summer, 2012-2013

Editorial
Welcome to the summer 2012-2013 edition of our newsletter, The Vibe. We trust you had a very Happy Christmas and a fun New Years celebration. In this edition, we celebrate the warmer months by providing you with information on hot topics that affect a large number of our clients. Craig Ellis opens the bowling on page 2 with advice about what to do if youre injured in a car accident. On the same page, Dino Di Rosa talks about Probate and why its important. Turning to page 3, Katherine Stavrou explains what the Family Courts do when deciding how to divide the assets of marital and de facto relationships. Anna Ardolino then talks about the significance of Property Interest Reports. On the back page, we have some legal newsbytes and our Free First Hour Interview Offer. Happy reading!

Inside this issue:

Page 1: Editorial Our new blog Our mission in 2013 Page 2: Craig Ellis on MVA claims Dino Di Rosa on Probate Page 3: Katherine Stavrou on property settlements Anna Ardolino on Property Interest Reports Page 4: Whats news Free first hour consultation promotion.

Our mission in 2013

With a New Year comes a New Years resolution: our renewed commitment to put our clients first and to provide them with an even higher level of service than they have been accustomed to. Our firm provides total legal solutions across the areas of law that matter most to people. No problem is too big or too small. We are accessible to all South Australians from all walks of life. We will listen to what you have to say. We will explain what we do every step of the way without boring you with law talk. We're accessible: you choose how you wish to communicate with us whether by phone, fax, email, letter or even SMS! We are passionate about what we do. We are ultra-professional but also personable, approachable and caring. You will notice the difference the moment you pick up the phone to call us, and when you come in for your first appointment.

Our contributorsour team

* Its the vibe of the thing, your Honour Dennis Denuto (Tiriel Mora), The Castle (1997)

Dino Di Rosa
Principal
Business law Family Law Estates and estate planning

Craig Ellis
Accident Compensation General litigation

Katherine Stavrou
Family Law & Wills and estates

Anna Ardolino
Conveyancing Paralegal support

Adelaide Office: 61 Carrington Street Adelaide SA 5000 Ph: 8237 0559 Fx: 8354 2099

Torrensville Office: 150 South Road Torrensville SA 5031 Ph: 8354 2233 Fax: 8354 2099

Correspondence: PO Pox 315 Torrensville Plaza SA 5031 E: admin@dirosalawyers.com.au W: www.dirosalawyers.com.au

Areas of practice: Family Law Business Law Wills, Estates & Estate Planning Property Law & Conveyancing

The Vibe, Summer 2012-2013

Page 2

What to do if injured in a car accident Craig Ellis explains

So youve just been involved in a motor vehicle accident? What should you do?
From time to time at our office, we receive enquiries from people who have more or less recently suffered injuries as a result of a motor vehicle accident. Unfortunately, these enquiries sometimes come to us two or more years after the incident. Sooner is better, but these hints apply to anyone injured in a car crash. Compulsory Third Party Insurance Scheme Everybody ought to be aware that South Australia has in place a system of compulsory insurance for injuries suffered in a motor vehicle accident when the person who has suffered the injuries is not to blame for those injuries (or only partly to blame). Most people would know this as compulsory third party insurance (CTP). When we register our cars, we are all required to pay an insurance premium to the Motor Accident Commission (MAC) so that all registered vehicles are covered by a policy of CTP insurance. The insurance fund is managed on behalf of MAC by Allianz Insurance (who have recently been advertising heavily on television for their other insurance products). Lodging a claim One of the first things anyone should do is lodge a claim with Allianz CTP. They can be contacted by telephone 1300 137 331. Hopefully this will enable you to receive appropriate treatment as soon as possible. You should keep a good record of the effect of the injuries on you. This might take the form of a diary. You should also consult regularly with your doctor, particularly once your claim has been accepted (because then the doctors fees will usually be paid by Allianz). We cannot over-emphasise the importance of giving a clear and consistent report of your injuries and your progress under treatment to your doctor. Medical treatment and advice The most common and effective way that information about your injuries can be communicated to Allianz is through a report from your doctor. The more comprehensive that report is, the better, particularly when this information is sometimes being provided to Allianz one, two or three years after the accident in question. If you do not tell your doctor about your pain or limitations on your daily life, then Allianz is unlikely to accept that you suffered such consequences. Of course we recommend that you obtain legal advice at the earliest opportunity. Some or all of your legal costs should be paid by MAC. Contact us on 8354 2233 for a no-obligation, free first interview. Unlike your injuries, it will not hurt you to give us a call.

What is Probate and why is it important? Dino Di Rosa explains

What is Probate?
We are often asked this question, particularly by executors: What is Probate? The role of the exector When someone dies leaving a will, the person named in the will as the executor has the important task of finding out what assets and liabilities the deceased had as at the date of death, and then distributing the net estate after discharging the liabilities. But before the executor can formally carry out this task, he or she will often need to prove to the Supreme Court of South Australia that the will was indeed the last valid will of the deceased. Application for Probate The application by which a will is proved as the deceaseds last will is called an application for a Grant of Probate. (The term Probate, like a lot of legal terms, is derived from the Latin, probare, which simply means to prove). As you would be aware, a will is a legal document that deals with a persons estate when they die. As such, a will has no legal effect unless and until the maker of the will dies. Because the will maker is no longer living, it is important that the proper legal authority has been given to the person so entrusted in the will, namely the executor, to deal with the deceaseds worldly possessions and assets, which, as you can appreciate, in this day and age, may well total millions of dollars. Probate is not required in all cases Not all wills require a Grant of Probate to be considered legally effective. For example, if a person dies with only a relatively small estate, for example a few thousand dollars in the bank, furniture, a motor vehicle, or major assets such as a home that is jointly owned with another person (eg a spouse), then generally a Grant of Probate is not required as a matter of formality to enable the executor to deal with those assets. The general rule of thumb is the more substantial an asset, the more likely that the relevant institution will require a Grant of Probate to authorise the executors ability to deal with that asset. As an example, an interest in land always requires a Grant of Probate to be issued. The same applies to substantial liquid assets such as a bank account with more than say $10,000 in it (although this depends on the financial institution involved). The importance of getting the right advice Whether or not Probate is required, and how and when to apply for Probate, can sometimes be tricky issues even for the professionals, so seek advice if you have been given the very important duty of being an executor of someones will. If you have an estate enquiry, please do not hesitate to call us on 8354 2233.

The Vibe, Summer 2012-2013

Page 3

How do Family Courts decide who gets what? Katherine Stavrou explains
How do the Family Law Courts decide who gets what in a property settment?
There is a common misconception that assets of a marriage or de facto relationship are divided 50/50 so who needs lawyers, particularly if there is agreement between spouses. Not true! The Family Law Courts have a four step process when determining who gets what and the outcome is never always simple. They have a wide discretion to consider all relevant issues. Here are the four steps. 1. Determining the net asset pool contributions, or non-financial contributions, such as contributions as a homemaker and parent)? Clients sometimes think that because one party is the main breadwinner they are entitled to more than the other party. Again not true. ALL contributions are taken into account, whether they are financial or non-financial. 3. Future needs

What are the needs of the parties, such as whether or not one of the parties will have the full-time care and control of children under the age of eighteen years, the health and mental capacity of each of the parties and their ability to obtain employment. This concept is very often misunderstood and could mean as much as 5% or 10% difference to the division of assets based on contributions alone. The larger the asset pool to be divided, the bigger the impact on the settlement. 4. What is just and equitable

What are the value of the assets and liabilities of each spouse at the current date? People sometimes think that only assets at separation are considered. This is not true. All assets are considered no matter whether they existed before the parties lived together or whether they were acquired after separation, and it is the current value that is relevant, not what the values of the assets were at separation. 2. Contributions of the parties

What is ultimately just and reasonable in the circumstances of each individual case? Another concept that few people are aware of or understand. The Family Law Courts have considerable discretion to make allowances for different situations even after considering steps 2 and 3. As you can see, there is no one answer. Each marital or de facto relationship is different and needs to be treated on its own facts. What you thought might be an easy 50/50 split, might not be the case at all. You might be losing out or exposing yourself to a big claim, which is why we recommend specialist legal advice and, if necessary, representation. Please call us for family law advice.

What contributions did each of the parties make towards those assets and the marriage (whether direct or indirect financial contri-

Anna Ardolino says: always check Property Interest Reports

Interested in purchasing property? We say: always read the Property Interest Reports!
Whenever a person sells land in South Australia, they are legally required to provide a purchaser of that land with a vendors statement. The vendors statement must include details of all mortgages, charges and prescribed encumbrances affecting the land along with any other prescribed matters. It is a bit like going to a used car yard and looking into the front passenger window of a car for sale to check for relevant information but with land there are no tyres to kick or a hood to look under to check for rust! Which is why the information that is contained in the vendors statement must be clear and precise. The vendor relies to a large extent on the information supplied by the State Government through its Land Services Group which provides a product known as the Property Interest Report. What is contained in the Property Interest Report The Property Interest Report sets out all the critical information concerning the land including whether there is a mortgage on the property, other encumbrances, zoning, development approvals, orders or notices, and applicable rates and taxes such as SA Water, Emergency Services Levy and Land Tax. If you are a purchaser, you should not rely on the information contained in the vendors statement, which can often be wrong or incomplete. The cost and benefit of Property Interest Reports For under $300.00 you should order your own copy of the Property Interest Report from the Land Services Group, or instruct us to do so. This may seem like a lot of money, but its a relatively low cost compared to what it might cost you if you overlook an important issue and end up buying the wrong property or a property with issues about which you were unaware. Whatever you do, dont rely on the word of the vendors agent. Lets face it, land agents are there to sell the property; their duty is to the vendor, not to you as the purchaser. While a land agent may not deliberately mislead you about the contents of the Property Interest Report, they may be mistaken about what something may mean, and inadvertently lead you down the garden path in purchasing the wrong property. If it all seems like information overload, as it often does for purchasers, ask us to go through the Property Interest Report with you. After all, thats what we are here for. Please call Anna Ardolino on 8354 2233.

Whats news in the law

Grant Hackett case: pre-nuptial agreement alleged to be invalid
From the Australian Financial Review: Olympian Grant Hackett is reportedly suing his former legal team, accusing them of botching his pre-nuptial agreement. Hackett, 32, has launched Supreme Court legal action against his former solicitors, Brisbane-based Mullins Lawyers. According to court documents, Hackett employed Mullins Lawyers on retainer between 2006 and 2009. He allegedly asked the firm to draft a financial agreement Australia's version of a pre-nuptial agreement less than a month before his 2007 wedding to pop star Candice Alley, the report said. The claim highlights the fact that pre-nups, although they have been law in Australia for over a decade, can sometimes not be worth the paper they are written because of technical and other defects.

Euthanasia could become a matter of will in South Australia: Stephanie Key MP

From the Adelaide Advertiser: South Australians could choose voluntary euthanasia as an option in their living will in the event they develop an "intolerable" condition or disease later in life. State Labor backbencher Stephanie Key is working on new voluntary euthanasia legislation and will meet with interest groups. Ms Key said she would prefer the option of voluntary euthanasia outlined in a living will, as is done in Belgium, to other models in places like Switzerland or Oregon in the US that require the patient to carry out or administer euthanasia themselves. A living will allows a person to take control of end-of-life medical decisions by indicating if they would prefer or refuse treatment for future illnesses. Under Ms Key's preferred model, a person would be able to state in a will that if they find themselves in "a situation where their life is intolerable in a medical sense then . . . they would like to follow through with the option of voluntary euthanasia". "In some places you can make that decision when you're actually on your death bed (but) it's hard to know what someone's view is if they're (too far) gone or they can't communicate." What the article doesnt say or explain is the fact that it is already possible for someone to have a living will in place which deals with the

issue of how they are to be cared for if they are, for example, in the terminal phase of an illness. We dont like the term living will as its not a will at all; we prefer to refer to them as medical powers of attorney and powers of guardianship. Short of euthanasia, it is possible for a guardian appointed under a power of guardianship to give permission or to refuse to consent to life saving medical intervention if the expected quality of life of the person involved is thereafter poor.

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Areas of practice: Family Law Business Law Wills, Estates & Estate Planning Property Law & Conveyancing

DISCLAIMER: This newsletter is for general information purposes only. It is not intended for the purpose of giving legal advi ce. The views expressed in this newsletter are not necessarily those of Di Rosa Lawyers. Di Rosa Lawyers has taken all reasonable measures to ensure that the material contained in this newsletter is correct. However, Di Rosa Lawyers gives no warranty and accepts no responsibility for the accuracy or the completeness of the material. Readers are advised not to rely solely on thi s information when making any decision. Readers should seek independent legal advice in relation to any issue which may affect them.