“He said, she said”
A comment that a Family Lawyer hears on a regular basis is "they are telling lies about me" or "that's not what happened" or "it's worth a lot more than what he says it is". In the early stages of a matter, it can be difficult to know what is true and what is not. Often it can be the case, as well that an area of dispute will have little bearing on the outcome of a matter.
It's the job of a family lawyer to consider what is relevant and what is not. If a matter is relevant and in dispute, it is the job of a family lawyer to consider what evidence might be available to resolve the dispute or support your case. Are there documents which can provide evidence of a matter? Should a subpoena be issued to obtain documents? What independent valuations should be obtained? Would a Family Report assist in resolving the matter?
A good family lawyer will always be about helping you resolve your dispute and not just assist you in 'scoring points'. The manner in which your family lawyer approaches your matter can impact significantly upon the time it takes to resolve your matter and the legal costs you end up paying. Choosing your family lawyer may be the most important decision you make in resolving your dispute.
Do I have to go to Court?
In short the answer is no. However, the Court can be a useful tool to progress your Family Law matter towards a settlement. If the other party to a property settlement or a parenting matter, either will not negotiate or respond to you, or you simply cannot reach agreement with the other party, then it is best to commence proceedings in the Federal Circuit Court of Australia with undue delay.
The Court can make orders and directions which will assist the resolution of your matter, such as orders for disclosure, valuations and that you and your former partner attend a mediation or conciliation conference. The Court has the ability to enforce such orders and even penalise a party who has not complied with their obligations.
"Going to Court" should not be viewed as "going to trial". Only about 3% of Court matters go to trial. Rather, going to Court should be viewed, when necessary, as an effective tool to assist you to finalise your family law matters. It can be the case that the commencing of Court proceedings is cost effective, compared to being involved in protracted and unfruitful negotiations outside of Court.
If you have been trying to negotiate with your former spouse and you are not getting anywhere, contact Springwood Lawyers to help get your matter moving.
Wills made in the context of second families
It is often difficult for a willmaker to know what to do and what is fair, when making a Will in circumstances when they have children from a former relationship but they still want to provide for their new spouse. Not only is it difficult to work out what is "fair", but it is also important for the willmaker to minimise the risk of a Family Provisions Claim being made against the estate.
A Family Provisions Claim would have the effect of significantly increasing legal fees and thus making even less available to be divided between the children of the first relationship and the current spouse. While there is no 'silver bullet', there are a range of options available, such as Mutual Wills, Life Estates and Testamentary Trust Wills.
You need sound advice regarding these options including the advantages and the disadvantages of each option.
When the provisions in a Will are unclear
Even in circumstances where the deceased leaves a Will, it is sometimes the case that the contents of such Will are unclear. If the Will contains something like a clerical error, then an application for ‘rectification’ may be required. If the problem is more complicated than that, an application to the Court for ‘construction’ of a Will may be required.
The Personal Representative is duty bound to administer the estate pursuant to the Will and if they don’t, the administrator can be found personally liable. Sound legal advice in such circumstances is required.
When a ‘Will’ does not comply with formal requirements
It can be the case that a deceased leaves a ‘Will’ but that such ‘Will’ does not comply with the formal requirements of a Will. It may be for instance the Will simply has not been executed properly, but it can also be the case that the ‘Will’ has been recorded in an unusual way such as left as a message on a mobile telephone or as a poem.
In certain circumstances, the Succession Act allows for such Informal Testamentary Documents to be admitted to probate. It is important that you receive good advice in these regards so that the deceased’s testamentary intention can be put into effect.