Hi there. We do not have enough information to provide specific legal information about your situation. The information below is of a general nature only and may be relevant to your circumstances.

A person will legally own a property if their name is registered on the Certificate of Title. This is referred to as having “legal title” to a property. More than one person can have legal title to a property. For example, a married or de facto couple can hold equal shares in a property, meaning that they each purchased and now own 50% of the property.

A person who has legal title to a property can sell that property. If there is more than one person holding legal title, each owner will generally need to consent to the sale, as their signature will be required on any land transfer documents. Their signature may also be needed on any mortgage documents linked to the property.

However, under the Property Law Act 1969 (WA), it is possible for a co-owner of property to apply to court to force the sale of a property if, for example, there is a disagreement with the other co-owner about whether the property should be sold. The applicant needs to prove certain things to obtain this court order, and the other co-owner may be able to defend the application on certain grounds. A lawyer can advise you of how this process works.

If only one spouse has legal title to the property, the other spouse will have limited rights to control or stop the sale of the property. However, the spouse without legal title may gain some interest in the property if, in the event of a separation or divorce, it is determined that both spouses have contributed (financially or non-financially) to the purchase and maintenance of the property.

Hi there. You said you are “on” our husband’s business/family trust. It is not clear what you mean by this, but we have assumed that you are a beneficiary of a trust. This means there is certain trust property, presumably associated with your husband’s business, that is being held and managed for one or more beneficiaries, including you. If you decide to remove yourself as a beneficiary, you will surrender your rights to receive a share of the trust property or any income derived from it.

If you decide to exit the trust before the divorce is settled, although you may lose your right to make a direct claim to the trust property, the court may take into account any income you expected to receive under the trust. This is part of the court’s broader duty to take into account a wide range of factors when making orders in a property settlement. Specifically, the court will take into account the direct and indirect financial contributions each person has made to the marriage (e.g. wages, inheritance) and non-financial contributions, such as caring for children or homemaking. The court will also consider future requirements of each person, such as age, health, financial resources, child maintenance and ability to earn money.

Hi there. It sounds like you are in a difficult position. Lending money to friends or family can be risky, especially if the relationship breaks down. The first step you should take is to write a letter to your friend setting out the details of the loan (e.g. date, amount, method of transfer) and requesting that she repay the money by a certain date, otherwise you may take legal action against her. In legal terms, this document is called a ‘letter of demand’. You should send the letter via registered post and keep a copy for your own records.

If your friend does not repay the money by the date specified in the letter, you may be able to take legal action against her. You can make a claim in the Magistrates Court for civil matters, such as loaned money that has not been repaid. To successfully make a claim against your friend, you would need to prove certain things about the loan.

For example, you would need to establish that both you and your friend intended the money to be repaid and that it was not a gift. You would also need to establish that you both intended to create a legally binding agreement. This means you would need to prove you were both serious about entering the agreement such that one person would sue the other person if they failed to repay the money. If any part of the agreement was put in writing (e.g. letter, email, text messages), this will strengthen your claim.

If you are successful in making a civil claim in the Magistrates Court, your friend will be legally required to repay the money. If they still do not repay the money, you have the option of commencing further legal proceedings to enforce the court’s decision and recover the debt. This can be a complicated and slow process and, if your friend does not have enough money to repay the debt, may not be worthwhile.

Hi there. It sounds like you are having a difficult time. It is not exactly clear what your legal issue is or what kind of help you need. The information below is general in nature and may be of assistance.

If you intend on separating from your husband, you will both need to make some important decisions about your children and assets. Some of the things you may need to consider are: where your children will live and who will take care of them, how your children will be financially supported, how your rent or mortgage will be paid, what will happen to any joint bank accounts, etc. You may not be able to agree on everything straight away, but it is important to reach a temporary agreement in the meantime. Family Relationships Online (www.familyrelationships.gov.au) offers free services and facilities to help you resolve or work through family disputes.

If you are considering divorce, you can only apply for a divorce in Australia if you and your spouse have lived separately and apart for at least 12 months and there is no reasonable likelihood of resuming married life. Applications for divorce can be made with the Family Court (www.familycourt.gov.au).

Even though you and your spouse may be separating, it is important to remember that both parents are the most important people in your children’s lives. The law says that the best parenting arrangements are those where the children continue to have a meaningful relationship with both parents, where both parents share responsibility for the children, and where the children live in a safe environment. You and your husband will need to agree on parenting arrangements. If you are not able to agree, you or your husband can apply to court to obtain parenting orders with respect to your children.

There is sometimes a connection between family breakdown and violence, and children are often most at risk. If you or your children are at risk of family violence, you should contact the WA Women’s DV Helpline (24 hours) on 1800 007 339 or the National Domestic Violence Counselling Service on 1800 200 526. If you or your children are in immediate danger, call the police on 000.

Hi there. It sounds as though you are having a difficult time. If you and your ex wife are still listed on the Certificate of Title for the property as co-owners, then you both legally own the house. This means that any profit that your ex wife makes from the property, through rent or other means, must be accounted for in proportion to her share of ownership. For example, if she owns 50% of the property, then she is required to give you half of the rental income she receives. This rule stems from the Property Law Act 1974 (Qld).

While this may be the the ‘legal’ answer, you still have a practical problem of enforcing your rights. For this reason, you should consider preparing a binding financial agreement that deals with the ownership of the house and entitlement to its rental income. These agreements are regulated under the Family Law Act 1975 (Cth).

Parties to a divorce may apply to the Court in a property settlement proceeding for an order about how property will be divided. In this case the Court will make an order which it considers to be fair based on the circumstances of each case. There is no single approach to the division of assets made by the Court, and generally speaking, assets are not simply split “50/50”. Instead, the Court considers the contribution made by each party to the joint assets. This will include such things as actual contribution of capital (for example if one party works full time) but also non cash contributions, like the costs of raising a child.

Alternatively, the Family Law Act provides for the possibility of parties to a divorce making their own binding financial agreement. This can deal with the splitting of assets, and other financial issues like rental income from a jointly owned property. These agreements are then made binding through either a consent order by the Court or by the signing of a Binding Financial Agreement. For the creation of a Binding Financial Agreement both parties must receive independent legal advice to ensure each person is being treated fairly and/or knows their rights.

Hi there. The Family Law Act 1975 (Cth) (“FLA”) deals with the separation of assets on a divorce and provides the framework for the creation of financial agreements, in particular, it allows parties to a divorce or de-facto separation to make their own binding financial arrangements. These can deal with the splitting of assets such as your block of land, and other financial issues like spousal maintenance in whatever way the parties choose. These agreements are then made binding through either a consent order by the Court or by the signing of a Binding Financial Agreement. For the creation of a Binding Financial Agreement both parties must receive independent legal advice to ensure each is being treated fairly and/or knows their rights. In addition both parties must give consent to the agreement by signing it.

While the FLA does not specifically provide that full financial disclosure is necessary when making one of these agreements or seeking a consent order, it would still be wise to give a full and frank disclosure of all your finances. This is because the FLA provides for several situations in which a financial agreement can be voided. A court may make an order setting aside a financial agreement if the court is satisfied that the agreement was obtained by fraud. Fraud here includes non-disclosure of a material matter.

Hi

Whether your friend can take any action depends on a number of factor, broadly including:

1. Who is/was the Trustee of the trust;

2. What the terms of the trust were; and

3. What the funds were used for.

It is unclear if this is a formal trust or whether her parents simply put the money aside for her without a formal understanding that the money was held on behalf of your friend. For the purpose of discussion I shall assume there was a formal trust set up with your friend as a beneficiary.

When you say her parents had "access" to the trust it is not clear if you mean they were the Trustees or if they had influence over the trustee. Either way, a Trustee of a trust has to act in the best interests of the beneficiary of the trust (which I am assuming is your friend).

However, the terms of the trust are important. it could well be that the Trustee has a broad discretion to disburse the funds in whatever way they deemed fit. For example, to pay for your friend's medical bills, special education needs, or to invest on her behalf. Depending on the terms of the trust, there may not, in that sense, be a "guaranteed principal" to give to your friend when she reaches a certain age. The funds could have been genuinely lost or disbursed.

Much also turns on the manner in which the trust funds were allegedly used. Trustees can be liable for breach of trust if they have used the funds or administered the trust in the interest of others (including themselves) above the interests of the beneficiary. So for example, if the trustees used the money for their own holidays or to buy jewellery for themselves, they can be held to account by your friend.

Even if breach of trust can be proved, your friend should consider the relationship with her parents if she wishes to take further action.

Hi there. The division of property on a divorce if a complex issue. Generally speaking, the law will entitle both parties to a share in all assets that were jointly owned at the time of separation. This will apply whether or not they are held solely in the name of one party or not. In addition to this, if one party has not worked during the marriage, but stayed home to raise the children, courts will consider this to be a contribution to the financial position of the family, and will take it into account when dividing property. As well as the usual assets, such as a house or car, the superannuation of the parties will also be considered. This is especially important if one party has not worked for a considerable period due to child rearing duties.

However, because you have been separated for three years, this may complicate the question. This will be especially true if there was no separation of assets at the time. This is because they the financial position of both of you may have changed since then, which may make quantifying them at the date of separation difficult.

Yes. Contesting a Will occurs when an eligible applicant disputes the terms of a Will because they have been either inadequately provided for or totally excluded. Even in circumstances where there is no Will and the Estate is determined on intestacy, you may still be eligible to make a claim in the same way as if the deceased had died with a Will.
The class of eligible persons who can contest an intestacy distribution differs in each State.
You should obtain legal advice to discuss your options in proceeding with a claim as soon as possible, as there are strict time limits which apply.

Depending on the contents of the Will, there may be a substitute Executor appointed pursuant to the wishes of your uncle. Alternatively, a beneficiary with the greatest interest in the estate can make an application for Probate or Letters of Administration with the Will annexed. In the event there is no one willing to take on the role of Executor or Administrator, the Public Trustee can assist in this regard.

Hi there. It sounds like you’re both going through a stressful time and would like to do the best you can for your child. It can be common for parents to decide that grandparents should not see their child when the relationship between the parents and grandparent is strained or has broken down.

As a general rule, grandparents do not have an automatic right to see their grandchild in same way that a mother or father does. However, this does not mean they have no rights in relation to the child. If a grandparent has had a significant relationship with the child they may consider applying for a Parenting Order under s64B of the Family Law Act 1975 (Cth). Despite the name, a Parenting Order can be made for the purpose of allowing the child to spend time with someone who is not their parent, such as a grandparent. However, the Court will only make a decision like this if it is in the best interests of the child.

The best interests of the child are the paramount consideration for the Court. In making a decision, the court will likely consider such things as the nature of the relationship between the grandparent and child and the likely effect on the child if they were to be separated from their current arrangements. The Court recognises the valuable role that grandparents usually play in a child’s life, and so if a child and grandparent have had a meaningful and ongoing relationship it is likely that the Court will order that this be maintained. However, you have mentioned in your question that your child has not really been in contact with their grandparents. The Court will most likely take this into account. In addition the Court will consider all allegations by you that spending time with the grandparents is likely to be harmful to the child.

You have not said what type of danger you believe your child will be in if they visit their grandparents. If there is any evidence of abuse or violence of any kind the Court will take this very seriously, and is unlikely to grant them visitation rights.

Hi there. From the information you provided, it sounds like you want to move overseas with your 10 year old daughter, of whom you have sole custody, so you can be closer to family members while you receive treatment for your mental health conditions. Your sister is threatening to seek custody for your daughter if you do this. The law has strict rules about when a child can be moved overseas. Generally, this requires the consent of both parents, or an order from the court if a parenting order exists in relation to the child. Any person who has rights of custody’ to your daughter may be able to stop you from removing her from Australia. Because you have sole custody, it seems unlikely that anyone else can establish that they have ‘rights of custody’ to your daughter and stop you from moving overseas with her. Your sister could only establish ‘rights of custody’ if a court has ordered that she has parental responsibility for your daughter or a right to spend time with or communicate with your daughter. Irrespective of moving overseas, the law requires parents to comply with parenting orders made by a court. These orders continue in effect until the court orders otherwise. If your sister wants to seek sole custody of your daughter, she would need to apply to the court to vary the original parenting orders that give you sole custody. Your sister would need to prove that there has been a significant change of circumstances that makes a change to the orders necessary. In Victoria, you have the option of applying for a family violence intervention order (IVO) at any Magistrates’ Court. The court can make such an order if the person against whom the application is made (the ‘respondent’) has: used family violence; assaulted, harassed, stalked or threatened a person; or damaged or interfered with a person’s property, and the respondent is likely to do so again. An interim IVO can be made if the applicant is in immediate danger.

Hi there. A parenting order is a set of orders made by a court about parenting arrangements for a child. A court can make a parenting order based on an agreement between the parties (called ‘consent orders’) or after a court hearing or trial. A parenting order may cover who the child lives with, contact hours, allocation of parental responsibility, etc. It sounds like a parenting order has been made by the Family Court with respect to your child and spouse. The law says that you must comply with the terms of a parenting order. In doing so, you must take all reasonable steps to ensure that the order is put into effect. This means that, if the parenting order requires your child to spend time with your spouse, you must not only ensure your child is available but you must also positively encourage your child to see your spouse. You must comply with a parenting order until it is formally changed by a court. If you do not comply with the parenting order, another person (such as your spouse) may file an application alleging you have breached the parenting order. If the court agrees that you have breached the parenting order without a reasonable excuse, you may be awarded a penalty. The precise nature of the penalty will depend on your personal situation and the seriousness of the breach.

Hi there. It sounds like you are dealing with a stressful situation. You did not say whether your dad had a will when he died or not. If he did have a will when he died, and he left all of his possessions to your grandfather and nothing to you, you may be able to contest the will on the basis that you are a child and require support out of your father’s estate. This is called “family provision”. In order to challenge a will on this basis an application has to be made to a court, so that the court can look at the case and make an order about whether you should get anything. An application for family provision can be commenced in either the District Court or the Supreme Court, depending upon the amount of provision being sought. The court will consider several things when making up its mind, including your own financial position and the size of the estate to determine your needs relative to the value of the estate. The Court will also look at the relationship you had with your father, as compared with the relationship your grandfather had with him to decide if it is fair that his share is reduced to make provision for yourself. However, it sounds as though the property under the will has already been given out to your grandfather (since your father died in 2011). This make the situation a little bit more complicated, since your grandfather is already in possession of your father’s stuff. It is still possible to challenge the will at this point, but it is much more difficult, and will require you to prove that you really require some support.

Hi there. Unless you can show that your mother is does not have adequate mental capacity to have altered her will the way that she did, there is nothing you can do to change it. Her property belongs to her, and she has an absolute right to deal with it how she sees fit (regardless of her age or the financial situation of her relatives). However, when a person passes away and their will is being distributed, it might be open to you to contest it under the Administration and Probate Act 1958 (Vic). Wills are usually challenged by people who are close to the deceased, such as spouses, carers or children. However, it is not clear whether you will be able to show that you have the right to challenge her will. Usually those who are successful in challenging a will are those who depended on the deceased before they died (such as children) and so need continued support. Challenging a will will involve making an application to the Supreme Court of Victoria. If you are successful, the the Court may order that provision be made out of the estate of a deceased person for your maintenance and support.

Hi there. Hiring a solicitor to review a contract is usually done as a risk minimisation measure. A solicitor will have experience in this type of contract, and will be able to assess whether or not the terms of the contract are fair to you, or whether there any any defects with them which may risk litigation in the future. There are a number of things you should think about when deciding to hire a lawyer. You will have to ask yourself how much the contract is worth to you, both in monetary terms, and in terms of time if there are issues with it that hold up work or lead to work being done inadequately or as a result of significant delays. Then you will have to consider whether you are in a position enter into negotiations or litigation if issues arise. With this in mind, if your building work is for a very small renovation, you may consider that the amount of cost and effort of seeing a solicitor is not worth it as compared to how much you are spending on the renovation. This is a decision you have to make with regard to the risks. Building disputes are notoriously messy and expensive, and are one of the most common types of civil disputes at small claims tribunals and in the courts. Seeing a solicitor to review a contract before work starts can help guard against future problems. You will most likely find that many small law practices offer standard flat rates for routine contract reviews such as this.

YES

Bigamy is Illegal in Australia (which is being married to more than 1-person at a time)

An application for divorce will generally take 2-months.

1- month from filing until the date of the hearing, then if the Decree Nisi is granted it becomes final 1-month and 1-day later (decree Absolute)

other than that it takes about 7- days to register for a marriage permit but there are no other time limits under the law

Parents’ rights under the Family Law Act 1975 (the Act)

There are no explicit rights for parents in the Act and a parent cannot choose to terminate their parental rights.

Parental duties, powers, responsibilities and authority

Each parent has parental responsibility for each of their children until they turn 18 years of age. If the parents have separated or remarry their parental responsibilities do not change because of the changes in the parents’ relationships.

Under the Act parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

It is the parents’ duty to protect their child from harm and to provide their child food, clothing and a place to live, financial support, safety, supervision, medical care and education.

Equal shared parental responsibility

Under the Act there is a presumption that “equal shared parental responsibility” is in the best interests of children.

The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in child abuse or family violence.

Parenting orders

If the parents have agreed how to share their parental responsibilities they can apply to the Family Court for parenting consent orders to reflect their agreement. If the parents cannot agree about the arrangements for their children they or other persons can apply to the Family Court for parenting orders.

A parenting order may be made in favour of a parent of the child or some other person and parenting orders may deal with one or more of the following:

• the person or persons with whom a child is to live;
• the time a child is to spend with another person or other persons;
• the allocation of parental responsibility for a child;
• if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
• the communication a child is to have with another person or other persons;
• maintenance of a child if the Child Support (Assessment) Act 1989 does not apply
• the process to be used for resolving disputes about the terms or operation of the order;
• any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Section 97 of the Family Law Act 1975 specifies that all proceedings should be heard in open unless the court decides otherwise.

Section 121 of the Family Law Act 1975 makes it an offence to publish or radio broadcast any account of the proceedings that identify persons or witnesses involved in family law proceedings. Televising or disseminating pictures of persons or witnesses involved in the proceedings is also prohibited.

Section 121(9) of the Family Law Act 1975 provides for some exceptions to the prohibition rule.

The Family Court follows a 4 step process when determining what orders to make for the division of property.

Firstly, the court should make findings about the identity and value of the assets, liabilities, financial resources and superannuation of you and your spouse held jointly, individually, jointly with another person or through trusts or corporations.

Secondly, the court should assess the contributions made by each of the parties to the relationshipincluding:

• financial contributions made by each of you or on your behalf. These include initial contributions at the start of cohabitation and contributions made during the relationship and after separation.
• non-financial contributions made by each of you or on your behalf. This includes contributions such as home renovations, homemaking and caring for children.

The court may allocate a preliminary dollar or percentage value to the property based on contributions only.

Thirdly, the court should consider the parties’ future needs and resources and whether an adjustment should be made because one of you has greater needs than the other. Some of the factors that the court may consider include:

• the age and health of each of you
• whether one of you has the care of the children
• your respective incomes
• ability to support yourselves
• your respective superannuation entitlements
• the assets and financial resources of each of you.

An adjustment can be made to the party who has greater future needs.

Fourthly, the court will consider the findings in steps 1 to 3 and make orders that are just and equitable in the circumstances of your case.

Superannuation is treated as property in family law proceedings and the same 4 step process applies to superannuation.

There is no minimum time period before you can file an application for property division in the Family Court after you have separated.

A maximum time limit applies for the division of property including superannuation – an application for property settlement must be filed at the Family Court within 12 months from the grant of the divorce order which occurs usually 1 month and 1 day after the divorce hearing or within two years from the date of separation for de-facto couples.

There is no limit about how long you can remain separated without divorcing.

It is however not generally advisable to remain separated permanently without divorcing.

Some related questions have already been answered by lawyers on LawAdvisor. The following links provide more information about separation and divorce:

• Can you live separated and not divorced?
• If I have been separated for 25 years, does my marriage just lapse?
• What is the difference between being separated and being divorced?
  

Hi there. It sounds like you are having a very difficult time with your grandchild. If your son is considering moving his child to another location further away from the mother of the child, it is important that he seeks legal advice. Relocation of children is not a decision to take lightly, and it is likely that it will require the consent of a court. It is important to know that no matter the track record of the mother, a Family Court will not look kindly on your son leaving without the proper consent of the court.

Hi there. It sounds like you are having a very difficult time. It is understandable and appropriate to seek advice about your obligations as a father to see and support your children.

There are no formal requirements for how much a parent must visit their children in the every day course of life, but both parents do have the right to see their children. The law will not intervene in the private arrangements that parents have regarding access unless parents request it to do so. So long as the arrangement is mutually beneficial, most parents choose not to involve the courts. If you are not happy with the amount your wife is allowing you to see your children you can apply to have the court make an order that you can see them. Your wife does not have the right to prevent you from seeing your children unless a Court has said she does. This will require you to see a lawyer, who will learn about your situation, and then guide you to the best course of action.

Yes, you can live separated and not divorced. The law does not say that you should divorce if you plan to separate permanently.

It is generally advisable to divorce rather than remain separated for an indefinite period because of following reasons:

• You cannot remarry without first obtaining a divorce order

• Staying married affects your rights and obligations regarding property and financial matters

• If your spouse is getting into debt you might be getting into debt too without even knowing it

• You may lose control over the management of some jointly owned assets but you will still have duties and obligations in relation to those assets

• Your spouse may find a new partner and start a new family. This will result in more expenses for the new family and therefore less assets left for property settlement with you

• Your spouse may dispose or hide some of the assets of the marriage so less assets will be available when it finally comes time to negotiate the terms of your property settlement

• If your spouse’s circumstances change after a long separation your final settlement could be a lot less. Loss of employment, sickness and care of children are only some examples that may affect your property settlement outcome.

• You may lose track of the location of your spouse and lose an opportunity to negotiate a divorce settlement. Instead, you may be left with no option but to seek a determination by the court which may be more expensive

• It may be more difficult to negotiate a divorce agreement with your spouse after a long separation

• In property settlement proceedings the court will assess the future needs of the parties and will consider the standard of living that is reasonable in the circumstances. Your circumstances might be significantly different after a long separation than soon after separation.

For an overview of the responsibilities of executors click here.

The consequences of failing to carry out those duties will depend on whether the will maker has exempt the executor from liability for certain acts or omissions.

The short answer is no unless there are no other living persons to whom the estate may be distributed. There is a structure for the distribution of an estate which is described in another answer.

For NSW I would suggest you review the NSW State Trustee and Guardian web site. There is a useful discussion of wills.

It is best to have a will so that this issue does not arise. If you are asking the question and can still make a will I suggest you do so!

Suggest you look at the NSW Trustee and Guardian web site for general information about the role of Executor. As a trustee you have legal obligation to ensure the proper adminsitration of an estate in accordance with legal provisions. That is why engaging a solicitor to support your role as executor is generally a good idea. I don't administer estates myself but a search for a local lawyer dealing in estate management is recommended. Also the Public Trustee and Guardian office offer an executor service.

It is likely that your employer has a policy on working a second job. Look first at HR policies. Your employment agreement and/or award where applicable may also deal with this issue.

A general issue is whether or not the second job may conflict in some way with the interests of your primary employer. The other issue is whether working a second job will impact on your ability to perform the duties of your primary job. Eg coming to work exhausted because of your secondary job.

After a divorce order has issued you can remarry. Before a divorce order has issued you may be separated but you are still legally married and it is a criminal offence in Australia to marry another person.

Divorce will affect your existing will, whereas separation won't.

After a divorce order has issued you will have 12 months to apply for property settlement.

Click here to find more relevant information.

Under the Family Law Act 1975 a parenting order may deal with one or more of the following:

(a) the person or persons with whom a child is to live;

(b) the time a child is to spend with another person or other persons;

(c) the allocation of parental responsibility for a child;

(d) if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

(e) the communication a child is to have with another person or other persons;

(f) maintenance of a child;

(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

(i) a child to whom the order relates; or

(ii) the parties to the proceedings in which the order is made;

(h) the process to be used for resolving disputes about the terms or operation of the order;

(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Different ountries have different laws about the drafting and proving of wills. The succession laws are not even uniform across Australia.

If you have assets in more than one country it is advisable that a will is drafted in each country. There are also practical reasons for having wills in each country.

If you have minor children it is very important that you appoint one or more guardians in your wills. You can appoint as guardians your relatives or friends in South Africa. You should firstly ensure that the guardians agree with their appointment.

If you fail to appoint a guardian in your wills the Court will choose a guardian from those who step forward. If no one does, the court will decide where your children will live, and who will make legal decisions for them.

In summary:

1. It is advisable to make an Australian will ensuring that both, your South African and Australian wills are in harmony and the Australian will doesn't cancel out the South African will. If you don’t have any assets in South Africa you may only need to have a valid Australian will.
2. Appoint guardians in your will who are willing and able to look after your children in the unfortunate event that you both die.

Yes, you can apply for a divorce without your wife's agreement.

The Federal Circuit Court has jurisdiction to hear your divorce application if you or your wife can answer yes to one of the following:

• you or your wife is an Australian citizen; or
• you or your wife regard Australia as home and intend to live in Australia indefinitely; or
• you or your wife ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

The procedure is that after you file the application for divorce you must serve a sealed copy to your wife. You will need to file an application to dispense with service because you have not been able to locate your wife.

If the court is satisfied that you have exhausted all options to locate your wife the court will order that service be dispensed with. After that the court will hear your application for divorce.

Your divorce will not become final until one month after the hearing.

Please click here to see what evidence you need in support of your application for divorce.

If you click here you will see an answer to a question about the divorce process which you might find useful.

It is very important to remember that you will have 12 months to file for property settlement orders after the divorce order has been granted. It is also important to remember to make a fresh will.

This is a complex area of the law and you should seek further legal advice.

No, arbitration is not the most appropriate method to resolve family law disputes.

Arbitration is a process where parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.

Arbitration is not the preferred method for resolving family law disputes for the following reasons:

• The decision of the arbitrator is not legally binding in family law matters and does not give conclusion to the dispute. The exception is when the Family Court orders with the consent of the parties that the proceedings are referred to an arbitrator for arbitration.
• Communications with an arbitrator are not confidential.

To divorce your spouse you must show to the Federal Circuit Court that your marriage has broken down irretrievably. This is proved by establishing that you and your spouse have been separated for a period of 12 months or more prior to filing the Application for Divorce.

Identifying the date of separation on your Application for Divorce form is not always easy because separation is not a short event but usually a process which can take place over a period of weeks or even months.

Section 48 of the Family Law Act states that a divorce order will be made only if “the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order”.

Separation under the same roof

To be separated does not mean that you and your spouse have to live in different homes. You may be separated but continue to live under the one roof for a number of reasons such as financial reasons or circumstances relating to the welfare of children.

In such circumstances the court may have difficulties establishing the separation date. That is why the court will need evidence to support your application. Such evidence by affidavit must be provided by you. In Western Australia an independent witness must also corroborate that you and your spouse have lived separated but under one roof.

Evidence about proper arrangements for the children of the marriage

If you have children with your spouse under the age of 18 you must satisfy the court that certain arrangements are in place for the children. The court will consider:

• the living arrangements for the children;
• the time the children spend with each parent;
• whether the children are being financially supported by you and your spouse;
• the health and education of the children.

Married for less than 2 years

If you have been married for less than 2 years the court cannot hear your Application for Divorce unless you and your spouse have been to a family counsellor to consider the prospects of reconciliation or the court dispenses with the requirement for counselling. Evidence that you have attended counselling must be given to the court.

Yes, you do need a lawyer for the following reasons:

• Even if you have reached an amicable agreement before signing any papers you should know your rights and obligations.
• The application for divorce is only one aspect of a permanent separation. Other matters to consider are property settlement, parenting, child support and spousal maintenance. These are complex areas of the law and you should receive advice about advantages and disadvantages of the proposed agreement.
• Any agreement about parenting must take into consideration the best interest of your children. The Family Court may consider that your proposed arrangements are not in the best interest of your children. Your lawyer should be able to spot any potential problems before the agreement reaches the Family Court for lodgement.
• A property settlement must be fair and equitable and a lawyer can advise you if your agreement satisfies the criteria. If you have reached an agreement which is not fair and equitable the Family Court may reject your proposal.
• There are Court documents, such as application forms and minute of consent orders, that must be lodged at the registry of the Family Court. If the documents are not drafted correctly they will be rejected by the Court or returned with a requisition for significant changes.

Depending on the size and complexity of your assets you may also require an accounting advice about the possible tax effects resulting from the division of the assets.

You can negotiate with your lawyer the scope of their involvement in your matter so that you can feel comfortable and know what to expect.

LAWYERS' OBLIGATIONS

Itemised bill

Under the laws governing the legal profession in Australia you may request your lawyer to give you a breakdown of your fees and costs in the form of an itemised bill. Your lawyer must comply with your request within 21 days (28 days in some States) from the date of the request and give you a signed itemised bill. Youshouldn'tbe asked to pay for the preparation of the itemised billas your lawyer is not entitled to charge you for that.

Cost agreements

Your lawyer must disclose up front and in writing in a cost agreement:

• the estimate of your total legal costs
• your right to negotiate a cost agreement and the rate at which you will be charged
• your right to receive a bill of costs and your right to request an itemised bill after receiving a lump sum bill
• your rights in a dispute in relation to costs.

An exception to the rule about disclosing costs is when your legal fees are under a certain threshold which varies between different jurisdictions. For example in Western Australia a lawyer does not have to disclose legal costs if they are under $1,500.

YOUR RIGHTS

In relation to a dispute about legal costs you have:

• the right to apply for a costs assessment
• the right to apply to set aside your costs agreement
• the right to make a complaint.

If you think that you have been overcharged you should first talk to your lawyer who may agree to review your bill.

If 21 days have passed since you requested the itemised bill and you still haven’t received one and you are concerned that you have been overcharged you can make a complaint to the appropriate State or Territory Legal Services Commissioner.

If you are not happy with a lump sum bill or an itemised bill you have the right to have your legal costs independently assessed within 12 months after you were given the bill.If on assessment it is found that your lawyer has charged you excessive legal costs and your bill is reduced by more than 15 % your lawyer may be required to pay the fees for the costs assessment. If your bill has been reduced by less than 15% you may be required to pay the assessment costs.

Charging excessive legal costs is professional misconduct which is the most serious charge a lawyer can face as a member of the legal profession.You should seek legal advice if you are not satisfied with the outcome of your request for an itemised bill or if you think that you have been overcharged.

Trustees of discretionary trusts are bound to act on behalf of the broad discretionary beneficiary class and are bound to consider all the beneficiaries in exercising discretion to make distributions of income, capital and when investing moneys. A mere discretionary beneficiary, to the extent that they haven't been allocated any income/capital does not have any proprietary rights to income or capital of the trust. Those beneficiaries are mere discretionary beneficiaries and only have a right of due administration of the trust estate at law (ie they must be considered by the trustee when the trustee makes distributions). The trustee is generally not bound to give its reasons for the exercise of discretion, and can choose to make equal, unequal or no distributions to a particular beneficiary and wouldn't be seen to do anything wrong given the discretionary nature of the trust.

However, having said the above, the terms of the trust deed need to be examined by a lawyer in detail to confirm whether an aggrieved beneficiary has any other recourse. For instance, the terms of the trust may provide for an "appointor" who is the party (separate from the trustee), who is able to appoint and remove the trustee, thus having overall control.

Contact a lawyer to carefully review the terms oftrust for this purpose. Also contact the trust's accountant to get a copy of the latest balance sheetsshowing any unpaid present entitlements/loan accounts owing to particular beneficiaries.

The terms of a modern discretionary trust are likely to have a broad discretionary beneficiary class, including unborn children, related trusts and companies and charities. Depending on the terms of trust, your daughter will be a beneficiary of the trust when she is born.

However, under current taxation law, note that any distributions of income made to your daughter whilst she's under the age of 18 years will be taxed at penalty rates after $416 isdistributed to her in a financial year, unless any of the exemptions in the Income Tax Assessment Act apply.

Consult a lawyer and work with the trust's accountant as to whether making distributions to your daughter will be appropriate.

This is often used in tax planning where trustees want to distribute to a corporate beneficiary (taxed at 30%).

Provided the beneficiary class of the trust is broad enough to include related companies and trustswithin thegeneral beneficiary class,you are able to do this provided the shareholder of the company allows the company to be included in the general beneficiary class. Have a lawyer carefully review the terms of the trust deed and work alongside the trust's accountant.

You mayalso want to considerwhether another family discretionary trust should be the shareholder of the corporate beneficiary, so as to allowflexible distributions of income at the corporate beneficiary level.

No, in NSW the Succession Act provides a hierarchy eligiblepeople to claim on an intestate estate. People like your spouse at the time of your death, your children and other family members including parents may have a claim under the prescribed eligibility tree. You should nevertheless draft a Will because it will allow you to exercise some control as to who gets what and when. Bear in mind, though, that a Will does not prevent eligible people from claiming more from your estate than they were given under the Willor claimingapart of the estatein circumstances where you excluded them entirely in your Will.

There are at least 2 issues here.

As to your affidavits, evidence has to be compiled only on things the Court will regard as relevant, and it has to be in the proper format and be "admissible".Usually if something is left out, that is done because of those things. Also, there are tactical issues to consider...it isalwaysimportant to consider what the response to evidence might be from the mother, and of course the judge. Remember court proceedings about children are not about your "rights" or those of the mother.

They are about what is best for the children.

Sometimes what is best for the children is not fair to a party. Still, the children are put ahead of fairness, as they should be. You should ask your lawyer why things are not in the evidence as you wanted, and listen carefully to the reply. Whether or not you can change what you have said on oath in an affidavit, and whether or not you should, are complex questions that should only be answered by someone who knows everything about your case. You can change lawyers if you are unhappy, but that will increase you fees to some extent

Now turning to the fees issue, you have the right to ask for an "itemized bill". Your lawyer cannot charge you for providing that.

If things that you could have been charged for have been left off the bill, generally your lawyer can issue a new bill and charge for that.If a discount has been offered, that can generally be removed by your lawyer.

With any bill, you can submit the bill to be "assessed" by a costs assessor of the Supreme Court.You can do that within 12 months of your final bill. That is fairly cheap for you to do, but you might need help from a solicitor with experience in the area of challenging costs, or a legal costs consultant.It is difficult to have an assessor make a finding that the work was of no use to you, and usually only a finding like that will lead to no payment of the costs of your lawyer.

Look at the "disclosure of costs" documents you probably received at the start, and any costs agreement that you signed, or that was sent to you, and see what they say. They are very important in terms of how your lawyer's costs are assessed.

I hope this answer has been of some help to you.

MARRIAGE

It sounds obvious but to divorce someone you must be legally married to that person first. The evidence for that is usually your marriage certificate.

MARRIAGE HAS BROKEN DOWN IRRETRIEVABLY

You must show to the Federal Circuit Court that your marriage has broken down irretrievably. This is proved by establishing that you and your spouse have been separated for a period of 12 months or more prior to filing the Application for Divorce.

If you have children with your spouse under the age of 18 you must satisfy the court that certain arrangements are in place for the children. The court will consider:

· the living arrangements for the children;

· the time the children spend with each parent;

· whether the children are being financially supported by you and your spouse;

· the health and education of the children.

If you have been married for less than 2 years the court cannot hear your Application for Divorce unless you and your spouse have been to a family counsellor to consider the prospects of reconciliation or the court dispenses with the requirement for counselling.

To give you an overview of the numerous steps involved I have included a brief summary next. My project plan links to the Family Court of Western Australia documents.

The following is just an example and some steps might not apply in your circumstances. Other steps not included in the project plan might be applicable in your circumstances.

INTERVIEW

1. First interview with the client in person or online Family Law Questionnaire.

2. Give to the client the brochure Marriage, Families and Separation.

3. Discuss costs and draft a retainer agreement.

4. Client to sign a retainer agreement and forward deposit on account of costs and disbursements.

5. Lawyer gives written advice to the client about the divorce.

APPROPRIATE FORUM

6. Objection to jurisdiction – due to various reason the court might not have jurisdiction to hear the divorce application. Lawyer to advise you on that.

APPLICATION

7. Complete Form 3 Application for Divorce. Include date of separation as it is important for the following reasons:

· when child support becomes payable;

· when new Centrelink benefits become payable;

· how the court will calculate the property settlement.

8. Send a copy of the completed Application for Divorce to client for checking.

9. Send a letter to other party seeking a joint application and sharing of application fee to save client’s money.

DOCUMENTS

11. If the Marriage Certificate is not in English (Overseas Marriage Ceremony), obtain a translation and an affidavit of translation. If client does not have a copy:

Ask the client to order a copy from the Registry of Births, Deaths and Marriages WA or click here if the marriage took place interstate.

Draft an affidavit if a copy cannot be obtained.

12. A Certificate from a Family Counsellor is required if the marriage lasted less than two years.

SECOND INTERVIEW

13. Client to swear the Application for Divorce form.

14. Lawyer to sign declaration.

15. Lawyer to obtain instructions about service.

FILE APPLICATION FOR DIVORCE

16. Take the following to the Family Court Registry for filing:

· original and two copies of the application - see translation clause if client does not speak English;

· filing fee or Application for reduction of payment of divorce;

· copy of Marriage Certificate;

· affidavit in Lieu of Marriage Certificate;

· affidavit of translation of Marriage Certificate;

· copies of any existing orders;

· copies of Citizenship paper or Australian Passport if client born overseas;

· for non-citizens and affidavit proving domicile in Australia;

· if the parties have been living under the same roof affidavit of the applicant and one corroborating witness.

17. Inform the client of the Court hearing date.

SERVICE IF NOT A JOINT APPLICATION

18. Contact respondent and confirm willingness to accept service. If Respondent has engaged a lawyer confirm that instructions to accept service have been given.

19. Immediately serve sealed Application for Divorceand Marriage, Families and Separation.

20. If the first attempt to serve failed serve again using an alternative service method.

Alternative methods of service

21. Use a process server.

22. Obtain and file an acknowledgement of service. File at the registry with a covering letter.

23. Obtain and file an affidavit of service.

24. Substituted service required.

25. Apply for dispensation of service under Reg 7.18 Family Law Rules 2004.

26. Service overseas.

Note: Inform the respondent at the time that the application is served if shortening of time sought.

IF DEFENDED APPLICATION

27. File and serve a response (objecting to jurisdiction) within 28 days of service.

28. Directions for further conduct of the matter.

29. Defended hearing.

DAY BEFORE HEARING

30. Remind the client of the hearing day.

31. Inform the client of Court process.

32. Ask the client if any change of circumstances has occurred between the date of filing and the hearing date.

HEARING

In the absence of the parties

33. Hearing in the absence of the parties.

In the presence of at least one of the parties

34. Prove the marriage - tender marriage certificate.

35. Establish jurisdiction -application should achieve this.

36. Prove the ground of divorce -application should achieve that.

37. Prove service - affidavit of service, acknowledgement of service, affidavit of proof of signature.

38. Show that proper arrangements have been made for the welfare of any children (s.55A FLA).

39. Seek leave to rely on client's affidavit evidence if any.

40. Advise the Court orally if any change in circumstances.

41. Divorce order pronounced.

ADVISE TO CLIENT AFTER THE HEARING

42. The outcome of the hearing and that one month for divorce order to take effect (s.55 FLA).

43. Status of his/her last Will -Wills Act 1970 s14A.

44. Twelve month limit for property and spousal maintenance applications to be filed from the date the divorce order took effect.

45. Change of beneficiaries of superannuation funds and insurance policies.

46. Mail divorce order to client with written advice about 41 to 44 above.

Yes, Will-kits are lawful.However, the enforceability of a Will-kit (or any Will) depends on whether or not it has been prepared in accordance with various formal witnessing requirements for Wills. A Will only comes into effect on your death, at which point it's enforceability will be assessed.

What are the formal requirements of valid Wills?

The requirements for witnessing Wills in SA are set out under the Wills Act 1936 (SA)and these are broadly similar to all of the other Australian jurisdictions and include the following:

• the Will-maker must have testamentarycapacity to make a Will, including that they are over 18 years of age and of sound mind, memory and understanding; and
• the Will-maker must have theintentionthat the document they are signing constitute their Will - accordingly there must be a document (defined broadly) that expresses these intentions; and
• the Will must be signed by the Will-maker (or at the Will-maker's direction if he or she is unable to witnesses the document); and
• the Will-maker's signature must be witnessed by at least two witnesses present at the same time (the witnesses are not required to be present at the same time, though practically they should be and this is best practice).
  

Are Will-kits worth the risk?

No. The Supreme Court does have jurisdiction to look beyond a failure to meet most of the above requirements in a range of circumstances - excluding those relating to capacity (as a statutory 'Court ordered' Will should be obtained for this purpose not a Will-kit). However seeking the courts 'rectification' or 'construction' of a Will that fails to meet these requirements or conceals the Will-maker's intentions will come at great expense to your beneficiaries.

Will-kits are an alluring economic option for many, however even the most straight forward of family and property arrangements require a level of qualified advice in order to achieve your intended outcome.I have heard many refer to will-kits as creating a 'false economy', quite simply on the basis that they are initially very cheap - however, if they are not correctly prepared, they will produce significant costs and confusion for your estate and your beneficiaries, perhaps requiring the intervention of the Court to put right.

Do they achieve the best outcome?

Rarely. In terms of the outcome that these documents achieve for your beneficiaries, they do little more than appoint someone to manage your affairs and name the beneficiaries of your property. Will-kits offer no tax effectiveness or asset protection, as compared with tailored Wills that are shaped to meet your families needs, both now and long into the future. You are also likely to own a range of non-estate assets (such as superannuation, life insurance or family trusts) and these assets require the implementation of separate mechanisms altogether.

What other options are available?

A specialist estate planner should always be contacted. Particularly as most lawyers will now offer complementary estate planning consultations with no obligation to engage the firms services. Many lawyers are also more than happy to have a preliminary chat over the phone. Will drafting is increasingly a specialist area of law. Unfortunately I have seen far too many Wills that have been prepared by qualified solicitors, but that fall far short of the mark.

I recommend that you view your estate plan as an investment for your family and act accordingly.

No, you cannot change unilaterally an existing pre-nup agreement.

You and your wife can terminate the existing agreement by either entering into a subsequent binding financial agreement or signing a termination agreement.

You and your wife must each receive an independent legal advice before entering into a termination agreement.

You may find the answer to another question about pre-nup agreements useful. Just follow this link for more details.

A pre-nuptial agreement also known in Australia as a binding financial agreement is an agreement between two spouses about the division of their assets and spousal maintenance should their marriage or relationship break down.

A binding financial agreement removes the power of the Family Court to decide these issues. This means that by entering into such an agreement you will be giving up your rights under the Family Law Act 1975.

The following slideshow summarises some important aspects of pre-nuptial agreements in Australia.

This means that you have been named by the maker of the will as the person appointed to carry out the directions of the will.

The role of the executor is time consuming and very important. I have listed some of your duties and responsibilities as an executor:

• Disposal of the body of the deceased
• Pay debts of the estate - secured and unsecured liabilities
• Distribution of the estate assets

• Obtain the last will of the deceased and review its contents
• Make arrangements for the funeral and pay funeral expenses
• Inform the beneficiaries of the will of their entitlements and give them a copy of the will
• Arrange for the care of the deceased’s pets
• Place a notice in a newspaper about the death of the testator
• Hold initial interview with beneficiaries
• Inspect properties and take action to secure assets by changing locks on property and liaising with the relevant insurance companies
• Contact financial institutions and determine holdings and liabilities
• Advertise for creditors of the estate
• Obtain the deceased’s death certificate
• Obtain proof of identity of all beneficiaries
• Obtain financial and accounting advice
• Attend to searches of Australian share registries
• Locate certificates of title
• Compile a complete list of estate assets and liabilities
• Apply for and obtain Grant of Probate
• Bring in money from financial institutions
• Sell real estate and other assets
• Open an interest bearing account in the name of the estate
• Invest funds in an interest bearing account
• File Income tax returns up to the date of death
• Finalise the deceased’s Centrelink or Department of Veterans Affairs pensions and entitlements up to date of death
  
• Inform Medicare
• Arrange transfer of or finalise final accounts for telephone, electricity, gas, and other relevant services
• Finalise and process final refund of contributions to medical insurance funds
• Advise relevant financial institutions to guard against unauthorised use of bank accounts
• Establish Trusts if beneficiaries are under 18 years of age, mentally incapable, or if there are specific instructions in the will
• Provide regular updates to beneficiaries
• Work with beneficiaries to try to resolve disputes
• Prepare legal defence to claims made against the estate
• Confirm entitlements with beneficiaries
• Lodge final estate tax return
  
• Prepare statements of account.

Most likely, you would have been also appointed as a trustee under the will. The duties, powers and rights of trustees in Western Australia which I have listed next are governed by TheTrustee Act 1962(WA).

• Duty to preserve and invest trust property
• Duty to obey the terms of the Will
• Duty to keep accounts and supply information
• Duty to act impartially
• Duty to pay correct beneficiaries
• Power to delegate
• Power of sale
• Powers of management
• Right to seek advice and directions of the court
• Right of reimbursement and indemnity

A year or more is not an unusual time for some estates to be completely administered.The good news is that if you are discouraged by the daunting list of tasks, duties and responsibilities that come with your role as an executor you can retain a lawyer to assist you. The cost for such services will be covered from the assets of the estate.You are not bound to accept the office and may renounce (reject) the executorship role.

Yes, it is possible to give your estate to a charity in your will.

Leaving your estate to a charity is a commendable act and to ensure that your gift does not fail you should be aware that:

• There are certain categories of eligible persons who can make a family provision claim if you have failed to provide adequately for them in your will. Eligible persons in Western Australia are your:
• spouse or de facto partner
• former spouse or de facto partner if they were entitled to receive maintenance from you at the time of your death
• children regardless of their age
• grandchildren
• step children
• parents

• You should do some homework about your chosen charity.
• What is the precise name and address of the charity – ask for the ABN
• Is your intended beneficiary really a charity
• Will the charity accept the type of gift that you wish to make, or has the charity a preferred form of bequest.

• You should consider giving your executor the power to select another charity which will fulfil the charitable purpose of the original charity because your chosen charity may have stopped to exist or may refuse your gifts.

The Succession Act 2006 (NSW) recognises de facto and other types of relationships when considering whether a person may be entitled to take from their intestate partner's estate, and does not require that you or your partner be married.

Depending on the circumstances, you may be entitled to some or all of your partner's estate. The circumstances include (but are not limited to) the length and nature of your relationship with your partner, your partner's family and other relationships, and when your partner passed away.

If you do have a claim or entitlement on some or all of your partner's estate, you may be entitled to apply to the Court for Letters of Administration over your partner's estate in order to have the power to find, take control of, and dispose of your partner's estate.

It may also be suitable to refer the matter to the NSW Trustee and Guardian to request that they apply for the Letters. The NSW Trustee and Guardian is empowered to seek to be appointed administrator of the estate by the Court, and dispose of the assets of the estate according to law.

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Disclaimer: This advice is general and is not intended to be relied upon as advice for your specific situation and circumstances. In order to provide an advice taking into account the entirety of your unique circumstances, I would strongly recommend that you seek further professional legal advice.

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Liability limited by a scheme approved under Professional Standards Legislation

I don't see any obstacles for a free service like this to be offered in Australia. There are already several paid online will assembly sites.

It is important to keep in mind that there are several aspects to estate planning and the drafting of the will is done after a thorough investigation by a lawyer of the client's circumstances. The question that remains to be answered is if the logic of such an investigation can be built into an online wills service.

I have included an example of the investigation process I undertake in the preparation of a client's estate plan.

An important step in the estate planning process is to ascertain what assets and liabilities form part of the client's estate. For example, some jointly owned assets or assets held in a trust cannot be gifted in a will.

Below is a chart with assets commonly owned by a testator.

One of the most important tasks for a lawyer advising on your will and estate plan is to identify key risks.

Examples include:

• Protecting your estate assets in case of a financial failure
• Ensuring that gifts to spendthrift beneficiaries are protected from creditors
• Life risk
• Marriage or relationshipbreakdown risk - a binding financial agreement may be suitable
• Taxation issues
• Family business retention

Below is a chart which gives examples of some of the risks and the potentially affected persons.

An ABN (Australian Business Number) is a unique identifying number issued to businesses in Australia. You can obtain an ABN if you are "carrying on an enterprise" in Australia.

If you send someone an invoice but do not supply an ABN then they are usually required to withhold tax from the payment to you. The amount they withhold is normally about half of the invoice amount.

The tax office provides a good overview of what constitutes carrying on an enterprisefor the purpose of getting an ABN. Normally if you are carrying on an enterprise you should get an ABN.

Your ABN is published together with your legal name and postcode on the Australian Business Register. You need an ABN:

• in order to register a business name;
• to register for GST (which you are normally required to do if you have a turnover exceeding $75,000 a year); and
• in order to have invoices paid without tax being withheld by the payer.

Your ABN should be placed on most business documents, for example contracts, invoices and receipts.

A trust is an arrangement where one person or organisation (the trustee) holds assets (the trust property) on behalf of another person (the beneficiary). Trusts can be established for a number of reasons such as tax planning, providing for children or charitable causes.

The requirements for setting up a trust depend on the type of trust you want to establish and its purpose. To create any trust in Queensland, you will need to:

• select a trustee who will agree to be responsible for administering the trust in accordance with the terms of the trust deed;
• have a lawyer prepare a trust deed (a legal document that sets out the rules for establishing and operating the trust) that is to be signed by the trustee;
• give the assets (even if only a nominal amount) to the trustee;
• pay stamp duty to the Office of State Revenue if a trust is created over ‘dutiable property’, as that term is defined in the Duties Act 2001 (Qld); and
• apply for an ABN and TFN for the trust online via the Australian Business Register or through a lawyer or accountant.

You should also be aware of additional legal requirements that apply to particular types of trusts. For example: a trust used to run a business must be registered for GST if annual turnover is $75,000 or more; a trust used to run a self-managed super fund must ensure it complies with the relevant superannuation and taxation laws that apply to it; and charitable trusts are subject to special laws and may be eligible for tax exemptions.

You should speak to a lawyer if you want to set up a trust in Queensland. By pressing the "Take Action" button - which opens late July - LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services.

No, your estate does not revert automatically to the State if you die intestate.

In Western Australia the property of a person who dies intestate is distributed according to a legislated will found in the Administration Act 1903 (WA).

The property will pass to the Crown if a person dies intestate leaving no husband or wife and no issue, parent, brother, sister, child of a brother or sister, grandparent, uncle, aunt or child of an uncle or aunt.

The following is a decision tree about entitlements on intestacy in WA.

In Western Australia you can deposit the will for safekeeping in the WA Will Bank for free.

For more information click here.

To download a deposit form click here.

An enduring power of attorney is a legal agreement that enables the donor to appoint one or more trusted persons as their attorneys to make financial and property decisions on their behalf.

Please view the following brief presentation about enduring power of attorney in Western Australia for more information.

Yes, prenuptial agreements prepared under Australian law are binding in Australia.

The following presentation will give you a brief summary of the advantages and disadvantages of such agreements. The circumstances when a prenuptial agreement can be set aside by the Family Court are summarised on slides 22-24.

A simple answer....yes.

The Succession Act of NSW (and similar enactments in other states I think) countsdomestic partnersas eligible persons to challenge a will if the will did not make "proper provision" for you.

In fact even someone who was wholly or partly dependant on the deceased, and was a member of the household of the deceased can challenge.

Of course whether you will be successful with a challenge, and whether it is worth it in both $ and other terms is something that you shouldask a solicitor with experience in the area.

Chris Wall

There are all sorts of options.

The worst one is to keep ityourself...if it cannot be found after your death, but there is a copy (for example with your solicitor), there may be a presumption that the original was revoked by you.

The best option is usually to have the original kept in a safe place...with your solicitor, in a safe custody box with your bank etc and to have a copy with your personal papers, with a note on it...for example "original kept at Walker Gibbs and King ". We keep wills in our safe, free of charge, and we stamp your copy in that way. If we lost your will (we won't), then a copy could be used, as the original was not in your custody when it went missing...the presumption does not apply.

You can register your will,if you want to make sure of it, but putting a copy marked as above will usually be enough. You might tell the executorwhere the will is.

What you should ask or tell executors and beneficiaries about the will depends on a whole heap of things...an experienced solicitor will know of the various problems that can arise. Take their advice.

Take advice as part of making or amending your will.

Chris Wall

Hello there and thanks for your question. The answer is no - your agreement with the registrar for the .com domain name doesn't give you any rights over the corresponding .au domain name. If the .au domain name is available, you can register it separately.