December 2015
ISSUE
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CHRISTMAS PARTY BEHAVIOUR AT WORK - EVERYONE’S RESPONSIBILITY
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WHAT DEFINES THE CAPACITY TO MAKE A WILL
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DEADLINE FOR CHRISTMAS HOLIDAY CHILD DISPUTES 2015
LEGAL - WEALTH PROTECTION - INVESTMENT - BUSINESS - LIFESTYLE - SYDNEY
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A FAMILY MEMBER HAS LEFT THEIR ENTIRE ESTATE TO CHARITY, CAN I MAKE A CLAIM
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ESTATE PLANNING FOR THE CHRISTMAS HOLIDAY
Christmas Party Behaviour at Work Everyone's Responsibility Christmas parties should be a fun and festive good time for all, but when a party is thrown by an employer, more care is required. Employers and employees have certain obligations and responsibilities and those duties do not disappear simply because the atmosphere is festive. Before throwing or attending a holiday party in a workplace setting, it is essential to be clear on exactly what your obligations are and what the possible consequences can be if problems arise.
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AWYERS
Employer Obligations for Holiday Parties in the Workplace Employers face risks when throwing parties for their workers, because these events typically are deemed to be employer-sponsored events that occur within the course of employment. Whether the party occurs on-site or off-site, employers are responsible for their staff’s conduct during work-related activities. Because party attendees may be considered to be “at work,” even though the event is a social one, an employer can be held vicariously liable for unlawful actions such as discrimination or sexual harassment. Employers also may be held responsible for injuries that occur at the party, or if guests become intoxicated and cause injury to others. Employers need to do everything they can to make sure staff members and guests attending the party have a good time while behaving appropriately and not creating a potential risk of a claim against the organization. Some tips to make sure things go smoothly include the following: • Remind employees the event is work-related and the normal code of conduct still applies. Respectful behavior is essential. Ensure employees know inappropriate actions will not be tolerated. • Remind employees of workplace policies on discrimination, health and safety, social media and sexual harassment. You may wish to send an email before the event to briefly summarize these workplace policies. • Let employees know that failure to observe workplace rules at holiday parties could result in disciplinary action. Employees must be aware their conduct at the party will go on their record.
By being proactive before you throw the party, you can help to ensure no staff members get hurt or engage in destructive behavior that can lead to a claim against your business. Employers also have had claims made against them for unfair dismissal after taking legal action based on conduct that occurred at holiday parties. You need to make sure your policies are clear and that you document, in detail, any problems that arise. If disciplinary action must be taken based on employee conduct at a special holiday event, be sure the response is proportional to the behaviour that occurred.
Employee Responsibility at Workplace Parties Employees also need to be aware their conduct at a workplace party can lead to disciplinary action, up-to and including termination. Employees need to remember the event may be a social one, but it is also a professional one, and they need to behave accordingly. Tips to ensure employees fulfill their responsibilities include the following: • Review employee policies and codes of conduct. Be sure you understand what both your rights and your obligations are when it comes to interacting with co-workers at holiday events. • Avoid consuming alcohol. Drinking at a holiday party only puts you into a situation where you could end up doing something you regret later. Employees need to be aware of their rights, as well as their obligations. If you are sexually harassed or are injured at a Christmas party thrown by your employer, you may be able to pursue legal action.
Getting Help from an Experienced Attorne
• Provide non-alcoholic drinks and ensure the service of alcohol is done responsibly. In many cases, it is best for employers not to serve alcohol at holiday parties at all.
Whether you need to plan a holiday party for your staff and want to make sure you reduce potential chances for legal liability or you attended or threw an event and something went wrong, it is important to be proactive in protecting your interests.
• Organize travel home for employees: Making sure options such as taxis are available can help reduce the risks of injury due to impaired driving.
Contact OHL Lawyers to find out how our legal team can help you prepare for a party or respond to the aftermath of a party at which a problem occurred.
• Review insurance policies before holiday events. Find out if you will be covered if something happens at the holiday party. OVER 60 YEARS OF TRUSTED EXPERIENCE
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Capacity to Make a
Will
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To make a valid will a person must have the ability to understand To put it in more traditional language, the will maker must “be of sound mind, memory and understanding.� Whether that state of medical science has become more sophisticated in its appreciation of cognitive disability.
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OWEN HODGE LAWYERS
In the rare situation where someone is found to have lacked the capacity to make a will at the time it was made, the will may be set aside in favor of an earlier one. Where none exists, family members may apply for letters of administration or intestacy.
Add to this a developing medical understanding of Alzheimer’s disease, particularly early-onset Alzheimer’s and vascular dementia, and it is easy to see that making a decision about Capacity is, in any event, a question for the testator’s physician
The Standard Legal Test
members who may have suspicions.
To make a will, an individual must be at least 18 years old, unless married. Beyond that, the standard legal test for capacity, established nearly 150 years ago in the case of Banks v. Goodfellow, requires that the will maker:
When to Consult a Lawyer
• understand the nature of the act of making the will and its • appreciate the extent of the property being disposed of in the will;
Nonetheless, an estate lawyer may be helpful in three possible situations: • You anticipate your will may be challenged because you intend to do something that will be unpopular, such as disinheriting a child; • You suspect a living relative lacks the capacity to make a
• be capable of comprehending and appreciating the claims terms of understanding a moral obligation to provide for the surviving spouse and children; and
• You want to challenge the will of a deceased family member because you believe they lacked capacity at the time it was intentions.
delusion overmastered the will maker’s judgment at the time of execution, rendering him or her incapable of taking a rational view of the matters to be considered. However, the application of these principles is extremely capacity usually depends on an expert medical opinion rendered at or very close to the time the will was made. It generally is easier to describe what lack of capacity is not, rather than what it is.
Old, Odd or Foolish The general presumption is that, unless convincingly demonstrated otherwise, individuals have the capacity to make a will. This is true even in cases of extreme old age, grave illness, medication, eccentric behaviour or decidedly bad decisions. An individual may lack capacity for some legal purposes, such as the ability to make an enduring power of attorney, and yet have the legal ability to make a will.
sound legal advice. There are relatively simple ways to discourage an ill-founded challenge. In the case of someone appropriate social services or law enforcement. The last situation is, by far, the hardest to deal with unless medical records contemporaneous with the making of the lawyer may be helpful in marshalling evidence. The attorneys at Owen Hodge Lawyers have extensive experience with will challenges and contests based on lack of If you face any of these issues, or if you simply believe you have been treated unjustly under the terms of a will, please contact us at 1 800 770 780 to schedule a consultation. We would be happy to help you assess your situation and go forward with the proper course of action.
Someone who had the capacity to make a will may lose it thereafter without invalidating an already executed instrument. Conversely, a person who generally lacks the requisite understanding may nonetheless have lucid moments when he or she can make a valid will. A person need not be able to read or write to make a will and a suicide after execution of a will does not necessarily create a presumption of lack of capacity at the time it was made.
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What are the Deadline for
hidden costs of retirement villages
Christmas Holiday Child Disputes 2015
Christmas is coming! If you are a newly separated parent or have a long and rocky past when it comes to negotiating holiday arrangements, that prospect may cause more dread than joy.
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OWEN HODGE LAWYERS
The Christmas and New Year’s holidays are among the busiest times of year for Family Law Courts and the Federal Circuit Court handling family matters. For Family Law Court disputes, the filing deadline for this year’s Christmas holidays was at 4 p.m. on Friday, 13 November. You still may be able to get a hearing, but there is no certainty, so it may be best to go back to another plan.
Friday in November for disputes involving Christmas school holidays (including travel arrangements) to ensure a court date before Christmas. The Federal Circuit Court of Australia has no such firm deadline, but, as a practical matter, the court’s workload makes a similar target date prudent.
First, a Little Context
The long holidays present a unique opportunity for international travel, but for separated or divorced parents in the throes of a scheduling dispute, the specter of international parental abduction can be truly terrifying.
Australian family law places the child’s interests above all else, so there is no legally enshrined right for either parent to have the company of the children on Christmas Eve, Christmas Day, New Year’s Day or any other special occasion. It’s the child’s right to have the opportunity for a meaningful relationship with both parents, which often implies some holiday time and experiences. It is hardly unusual for divorced or separated parents to have difficulty coming to an agreement about time spent with children. Many solve this problem through a parenting agreement, which becomes formalised as a parenting order. These may seem somewhat rigid, but they discourage disputes and give the legal system clear enforcement guidelines in the event of breaches. Problems arise where there is no parenting order. Perhaps communications have broken down and one parent fears the other will unilaterally alter an informal arrangement, prevent the other from seeing children at all during the holidays or remove them to a foreign jurisdiction. At that point three options exist: • Family dispute resolution; • An application to Family Court for the issuance of a parenting order, or: • An application to the Federal Circuit Court for the issuance of a parenting order. A documented attempt at family dispute resolution is usually a prerequisite for the issuance of a parenting order. Family Dispute Resolution FDR often can help estranged partners with holiday and other parenting arrangements. In concert with advice from a family lawyer about negotiating an agreement, FDR is often sufficient to resolve holiday problems. However, where FDR is unsuccessful or unsuitable, it may be necessary to resort to the court system.
Recourse to Family Law Courts If the negotiations fail, parents may apply to the Family Law Courts for parenting orders. With few exceptions the courts will require a certificate confirming an attempt at FDR.
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A Special Word about International Travel
A parent always should obtain written consent of the other before taking children for an international holiday. If a parenting order is in force or if court proceedings are pending, it is a crime to remove children from Australia without consent or a court order. If you fear your children will be taken from Australia, you may apply to the court for an order restraining their removal and have their names placed on the Family Law Watchlist. They will be stopped when trying to clear Australian customs.
What You Can Do Today The likelihood of getting a parenting order a month before the Christmas holidays is slight, but not impossible. If negotiations truly have broken down, it may be worth going ahead with the application with an eye toward next year and future disputes, if nothing else. It also may be worth going back to the negotiating table. Keep in mind that FDR is a process, not a single event and the assistance of a family lawyer may be helpful in breaking a deadlock. In an emergency situation, courts may grant a hearing more quickly. Courts in NSW and the National Enquiry Centre will be open throughout the holidays, but with minimal staff, except on the following dates: Friday 25 December 2015 Monday 28 December 2015
w
Friday 1 January 2016 The family law attorneys at Owen Hodge Lawyers have extensive experience in helping clients avoid or resolve visitation and parenting disputes whether they revolve around the Christmas holidays or not. We can assist with negotiations or with recourse to the court system when necessary. If you find yourself faced with this difficult issue, please call us to schedule a consultation at 1800 780 770.
The Family Law Courts consist of the Family Court of Australia and the Federal Circuit Court of Australia. Either court may hear an application for a parenting order. The Family Court of Australia sets a deadline of the second
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Estate Planning for the Christmas Holiday
As the Christmas holiday approaches, now is the perfect time to plan ahead for the future and think about the legacy you want to leave behind for your family members after you are gone.
the lowest tax rates end up paying the tax. Thousands in savings can be achieved through strategic tax ries are able to apply a low income rebate.
This holiday season, before enjoying time with your loved ones to celebrate the festivities, you should
to others is used wisely.
Creating a comprehensive estate plan is a smart choice.
will have the option to take an inheritance outright. Before this age, the money is held automatically in • Creating an enduring power of a testamentary trust to be used for attorney: An enduring power of a attorney allows you to name someAfter the preservation age, the and act on your behalf if you become physically or mentally the money in trust so it remains unable to act on your own. Without protected or can opt to take it outright. Asset trusts protect money an enduring power of attorney, someone has to apply for a guardand property in case of a creditor ianship order from the ACT Civil claim, bankruptcy or divorce. and Administrative Tribunal if you become unable to act on your own. • Tax planning:The creation of a discretionary testamentary trust makes it possible for taxable income Get started today by contacting OHL Lawyers to create a plan for generated by an inheritance to be strategically allocated so those with the future.
Estate Planning Checklist for the Holidays Your estate plan should protect your business and assets, ensure your family is provided for after you are gone and provide you with dignity in the future. Some of the things you may wish to include as you create an estate plan are the following: • Asset protection for yourself and A testamentary trust often can be the best solution to protect your assets and make sure the money and property you leave OVER 60 YEARS OF TRUSTED EXPERIENCE
A testamentary trust allows you to
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Can You Make a Claim When a Family Member Leaves Their Entire Estate to Charity?
If your family member passes away, you may expect you will be left some of the money and assets the deceased has left behind. This is especially true if the person who died was your spouse or your parent. However, sometimes the deceased will leave money to a charity rather than to family members. When this happens, you may wish to contest the will and make a claim to the estate. Whether you can make a claim on the estate is going to depend upon many factors, including your relationship with the deceased and whether you have a very good reason for the court to go against that person’s stated wishes. OHL Lawyers can help you determine if you have a claim and can guide you throughout the process of contesting the will.
will left behind by a deceased individual. Eligible persons include spouses, de facto partners, children, children of a domestic relationship, former spouses, grandchildren, dependents who were or are being supported by the deceased and other household members.
valid reason to allow a claim because your relationship with the deceased creates a moral obligation for that person to provide you with money and assets necessary for you to maintain your quality of living, obtain an education or advance in life.
Eligible persons who wish to contest a will and try making a claim to receive money from the estate will need to show one of two things.
Factors the court may consider include the specifics of the relationship you had with the person who passed away, as a moral obligation is presumed for spouses, life partners, de facto partners and children. However, a presumption of a moral obligation can be removed if estrangement is demonstrated.
Either that the will is not valid because the deceased was under duress or of unsound mind when it was created, or that there is a valid reason for going against the deceased person's wishes even Generally, a deceased person may leave money to whomever he or she though the gift made to the charity wants-including a charity. However, was a valid one. the Family Provisions Act 1982 allows eligible persons to contest a You may be able to argue there is a OVER 60 YEARS OF TRUSTED EXPERIENCE
Courts also will consider whether the person contesting the will is left financially needy without an inheritance.
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Ultimate Christmas
Countdown Checklist
The holiday season brings with it a lot of fun--but a lot of tasks you need to do to get ready. With this Christmas countdown checklist, you can make sure all of the stockings are hung by the chimney with care (and all of your other holiday tasks are done) well before the holiday is upon you. • Talk with your family early and create a plan. Who will be hosting which holidays? • Purchase plane tickets for holiday travel if you haven't already. • Create a special holiday calendar with all of the activities you and your loved ones are participating in. With a master calendar listing all of the parties, pageants, and other events, you are far less likely to end up overbooked or missing an important date. • Get your cookies and pies baked and your candies made. Many people prefer to bake several weeks in advance for the holidays and freeze cookies or cookie dough. This makes it easy to pop holiday treats out of the freezer if a friend stops by unexpectedly. • Put up your holiday décor. Lights, ornaments, holiday trees and other festive items should be put up early so you have ample time to enjoy. • Check to ensure you are ready for overnight guests. If you need more sheets, pillows, and blankets, shop for them. • Make sure you have enough dishes, glasses and table linens and get your holiday table set early.
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• Create a holiday gift card list, purchase cards and stamps, and send out your holiday cards. It can take time to address all of the cards you wish to send, so get started early. Keep some extras so you also can send out last minute cards if you receive a greeting card from someone you accidentally left off your list. • Purchase festive wrapping paper and make sure you have boxes and tape available for wrapping.
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• Make a master gift list and a budget, and then head to the store or use the Internet to get your shopping done. Wrap the gifts as you buy them so you don't end up with a lot of wrapping to do at once. Be sure to buy batteries for children's toys.
OHL Lawyers wishes everyone a safe and a happy holiday. Our legal team is here to help with any year end tasks as you get ready for the festive season.
This holiday season, before enjoying OVER 60 YEARS OF TRUSTED EXPERIENCE
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What’s On in Sydney Electronic Music Conference (EMC)
Coates Hire Sydney 500
1st December till 2nd December 330 George Street, Sydney, NSW 2000 www.electronicmusicconference.com
4th December to 6th December Sydney Olympic Park NSW 2127 Phone: (07) 5630 0364
6th December George Street, The Rocks NSW 2000 www.varietysantafunrun.com.au/
Sydney's annual Electronic Music Conference (EMC) is Asia-Pacific's premier dance music event. Each year speakers, artists, delegates and aspiring DJs and producers gather in Sydney for three days of panels, talks, networking, masterclasses and more.
The streets of Sydney Olympic Park will ignite for the Coates Hire Sydney 500 as drivers push the limits at the season's grand finale. Don't miss a moment of the action as Ford, Holden, Nissan, Volvo and Erebus Motorsport V8 go head to head at the Championship showdown.
Thousands of Santas of all shapes and sizes will spread the spirit of Christmas when Variety - the Children's Charity hosts the seventh annual Santa Fun Run on the first Sunday in December.
Messtival - Bondi
Variety Santa Fun Run - The Rocks
The Four Seasons
Sydney Hills Shakespeare in the Park
6th December Campbell PdeBondi NSW 2026 www.mangoes.net.au
7th December Bennelong Point, Sydney NSW 2000 Phone: 1800 444 444
11th December 2015 Bella Vista Farms, Bella Vista NSW 2153 www.sportforjove.com.au
Held on Bondi Beach each year, Mess-tival is a one-day festival celebrating the peak of the mango season in Australia and the official start of summer, whilst raising funds for the North Bondi Surf Club. Now in its fourth year, Mess-tival 2015 will see more fun and games, more memories and more mangoes.
Vivaldi's Four Seasons has undergone many reincarnations since it was first played by the talented orphans of the Ospedale della Pietà in 18th-century Venice. Now, Richard Tognetti and Joseph Tawadros bring their own blend of musical alchemy to this program
The Sydney Hills Shakespeare in the Park is an annual event, staged in partnership with the Hills Shire Council.
Voices of Angels: Gloria!
New Year's Eve on Cockatoo Island
Hamlet - Sydney
14th December to15th December 2 – 12 Angel PlaceSydney NSW 2000 Phone: (02) 8256 2222
31th December 26th October to 6th December Cockatoo Island, Sydney Harbour NSW 2000 Sydney Opera House, Sydney NSW 2000 www.cockatooisland.gov.au/stay/NYE-2015 Phone: (02) 9250 7777
The magical young voices of Sydney Children's Choir and Gondwana Voices will transport you to Christmas in 18th Century Venice with Vivaldi's beloved masterwork Gloria, directed by Lyn Williams OAM.
Cockatoo Island is one of Sydney's best kept secrets when it comes to watching the New Year's Eve fireworks.
OVER 60 YEARS OF TRUSTED EXPERIENCE
Enjoy a fun and relaxing night with friends and family, avoiding the crowds, long walks home and traffic jams.
The Festival is a repertory season of plays produced by SfJ at Bella Vista Farm Park throughout December each year.
Following Bell Shakespeare's critically acclaimed Henry V in 2014, Damien Ryan directs Josh McConville and Matilda Ridgway in a passionate and compelling new production of Hamlet.
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INDIVIDUAL AND COMMERCIAL LAW SPECIALISTS Enhancing the lives of our clients by providing acquisition of wealth, protection and management of assets and the transfer of wealth throughout generations. CALL 1800 770 780 VIEW www.owenhodge.com.au VISIT Level 3, 171 Clarence Street, Sydney NSW 2000 Level 2, 12-14 Ormonde Parade, Hurstville nsw 2220