FAQs - to our Lawyers

If you have a question you would like to see included in this list please email your question to: enquiries@hocw.com.au.

Wills & Estates

What are the grounds for contesting a Will in Victoria?

A Will may be contested if the Will is found to be invalid on the basis that:

  • undue influence was exercised over the person making the Will,
  • the person didn’t know or approve the contents of the Will, or
  • the person making the Will lacked capacity. 

The Will may also be challenged if someone thinks they should have been provided for or if they have not been provided for adequately.

What is a Testator's Family Maintenance Claim (TFM)?

A TFM Claim is an application to the Supreme Court or County Court challenging the provision made for that person in a Will or where a person didn’t leave a Will.  Click ‘Who can challenge a Will in Victoria’ to find out more.

Who can make a Testator's Family Maintenance Claim (TFM)?

In order to make a TMF claim, a person needs to be eligible to do so.  Amendments to the Administration and Probate Act 1958 commenced on 1 January 2015 creating eligibility requirements.  Click Who can challenge a Will in Victoria’ to find out more.

What’s the cost of contesting a Will?

There are many factors to consider and the cost will definitely depend on how complex the matters are, how many people are concerned, the information available, whether it can be resolved before going to court or not.  For an initial discussion please contact Lachlan Vallance.

How do I, as executor, defend a contested Will?

An executor’s duties may also extend to having to deal with ‘defending a will’.  Our wills and estates team can advise you of what your responsibilities are and assist you with the process.  Click The Rights and Responsibilities of the Executor to find out more.

How do I find a deceased family member's Will?

The Will may be stored at their lawyer’s office, at the bank, in a safety deposit box, with their financial adviser or filed away at their home.  It may also be worth looking on their computer, this may help establish whether a Will actually exists and where it may be located.

How do I find out if I am included in a Will or not?

Administration of the estate is undertaken by the executor.  The executor will notify the beneficiaries, although his may not happen until after probate has been granted. 

How can I get a copy of the Will?

Certain people are entitled to a copy of the Will.  Once probate is granted anyone can get a copy of any Will that has been lodged.  In Victoria it would be at the Supreme Court of Victoria Probate Office.

Who can challenge an unfair Will?

You have to satisfy the eligibility requirements as set out here: Who can challenge a Will in Victoria’.

What happens if I die without a will?

When someone dies without a will, that person dies intestate. The law of intestacy applies and your money and property will be distributed to people according to Legislation. The general position is that the first $100,000 goes to your spouse, one third of the balance goes to your spouse, and two thirds of the balance is to be divided between your children equally. If there's no spouse and no children and grandchildren, then it will be distributed to your next of kin, e.g. parents, siblings.

Why should I have a will?

A will, among other things, enables you to decide how your assets are distributed after your death and nominate executor(s) of your choice to handle the distribution of your estate.

When is a Will not valid?

A Will is invalid if:

  • undue influence was exercised over the person making the Will,
  • the person didn’t know or approve the contents of the Will, or
  • the person making the Will lacked capacity.
What happens to my will if I am separated but not divorced when I die?

Nothing! Your will remains valid. Therefore it is important to make a new will immediately after separation.

What is an enduring power of attorney (EPA) medical treatment?

An EPA medical treatment is a legal document where you as donor appoint an agent to make medical treatment decisions for you. An EPA medical treatment needs to be signed in the presence of someone able to witness a statutory declaration in Victoria. Your agent will only be able to make medical treatment decisions for you if and when you can no longer make these decisions for yourself.

Wills & Estates - Probate

Can probate be granted without a Will?

If a person dies without a Will there is no executor to administer the estate.  The next of kin would have to apply for ‘letters of administration’.  Click Probate | Grant of Representation to find out more.

What if the Will is found after probate is granted?

An application needs to be made to the Court to withdraw probate and then another application should be made for probate of the Will that has been found.

Can a Will be contested after probate granted?

Yes applications, by eligible persons, must be commenced within six months of probate or letters of administration being granted.  Click ‘Who can challenge a Will in Victoria’ to find out more.

How long after probate can a Will be contested?

Applications must be commenced within six months of probate or letters of administration being granted.

Property & Conveyancing

What is conveyancing?

Conveyancing is the process of attending to all the legal requirements for transferring ownership of a property from a seller to a buyer.  It includes the preparation of documentation, liaising with banks, and arranging settlement, being the final exchange of title documentation and settlement funds, and notifying the relevant authorities of the transfer.

What does a conveyancing lawyer do?

A conveyancing lawyer will attend to the preparation and perusal of all required legal documentation, including the contract, Section 32 Vendor Statement, Transfer and associated documentation, to any borrowing arrangements, and to the adjustment of outgoings (apportionment of council and water rates, land tax and owners corporation fees) in preparation for the settlement of the transaction.

Do i need a conveyancer to buy or sell a house?

It is a good idea to engage a conveyancer, preferably a lawyer, to attend to the legal requirements of a conveyancing transaction, and to the numerous additional administrative and practical tasks and considerations involved in a sale or purchase transaction.

Is there a cooling-off period after an auction?

No, the period of three clear business days after the purchaser has signed the contract applies to private sales only. It also does not apply where a contract is signed within three clear business days before or after a scheduled auction, to commercial property, or to real estate agent or corporate purchasers.

What is Verification of Identity (VOI)?

In order to protect against the risk of land title fraud and other land title irregularities, recent statutory provisions require that all persons selling, buying or otherwise transferring properties need to have their identity verified.  This is conducted according to a standardized face-to-face process by a lawyer, conveyancer or Australia Post.

What is a caveat on a property?

A caveat is a document that can be lodged by a person at the Titles Office (Land Victoria).  Once the caveat is registered, a notice appears on the title, thereby providing a written warning that the person claims rights over the property.

This may be:

  • A purchaser who has signed a contract to purchase the property;
  • A spouse or partner of the property owner who is claiming an interest in the property pursuant to a constructive trust on the basis of having contributed to the purchase price or to the improvement of the property; or
  • A creditor who has a charge over the property pursuant to a clause in a written agreement with the property owner to secure the payment of a debt.
What is a covenant on a property?

A covenant is an agreement between property owners restricting how a property may be used.  A covenant may prohibit the construction of more than one dwelling, the further subdivision of the land, or the use of certain building materials, and is enforceable against the property owner by the person who takes the benefit of the obligations outlined in the agreement.

What is an easement?

An easement is a proprietary interest in someone else’s land.  It is a right held by a person to use land owned by another person, most commonly rights of way, or for services, such as water, electricity and sewerage.

Should I insure the property I have just purchased or should I wait until settlement?

Once you sign a Contract of Sale to purchase a property, you should take out building replacement insurance to protect your interest. If the property is strata titled, this insurance should have been put in place by the owner’s corporation prior to the sale of the property. Click here to read more in Sarah Lindsey's blog.

I've just bought a property, what happens to the deposit I pay for this property?

The deposit paid by the purchaser is either held by the estate agent or solicitor in a trust account, as stakeholder until settlement, or until the purchaser releases the deposit pursuant to Section 27 of the Sale of Land Act 1962.

What happens if the purchaser is unable to pay on the day of settlement?

If the purchaser is unable to pay on the day of settlement they risk being in default and forfeiting the deposit, which is usually 10% of the purchase price. A purchaser will be liable for any shortfall between the original contract price and the amount ultimately received by the vendor.

Who owns the laneway at the back of my property?

Laneways are not often owned by Council. They often remain registered in the ownership of the original developer who subdivided the land in the late 19th and early 20th centuries.

Family Law

When's the best time to engage a family lawyer?

We encourage you to see a family lawyer as soon as possible. Everyone's situation is different and an experienced family lawyer is the best person to help you with legal advice.

We are separating and are not married, what are our entitlements?

The law applies to married couples, de facto couples and same sex couples. We advise you not to delay in seeking family law advice.

Do we need a family lawyer if we can agree to everything?

Yes, it's best to ensure that what you agree to is legally binding.  A family lawyer is best placed to do this for you.

Is there any time limit for issuing an application for property settlement?

For married couples, a property settlement can be entered into before or after you are divorced. However, once you are divorced you only have 12 months to make an application to the Court for property settlement. For de facto couples there is a time limit. You only have 2 years from the date of separation to issue an application for property settlement. For both married and de facto couples, if you are out of time to issue an application for property settlement then you must file an application to the Court for leave to apply out of time for a property settlement first. 

What are the grounds for divorce?

There is just one ground for divorce which is the irretrievable breakdown of a marriage. However, the parties must be separated for a continuous period of not less than 12 months immediately preceding the date of filing an application for divorce. This prerequisite may also be satisfied if the parties have been living separately under one roof.

What if my former partner and I cannot agree on the living arrangements for our children post separation?

The first step is to participate or attempt to participate in Family Dispute Resolution or as it is more commonly known mediation.  There are a number of Family Dispute Resolution providers such as the Family Relationships Centre, FMC Mediation and Counselling or Relationships Australia. If you are unable to reach agreement after Family Dispute Resolution or if your matter is unsuitable for this, the Family Dispute Resolution Practitioner will issue you with a Section 60I Certificate.  Once you have your Section 60I Certificate you can issue an application for parenting orders in the Federal Circuit Court. 

What does the Court take into account when making parenting orders?

The Court’s paramount consideration when making parenting orders is what is in the best interests of the child. To determine this the Court has two paramount considerations. Firstly, the benefit to the child of having a meaningful relationship with both parents and secondly the need to protect the child from any physical or psychological abuse. 

The Court also has a number of other additional considerations that they take into account such as any views expressed by the child. The weight a Court give’s to a child’s view will depend on the age and maturity of the child.

Business Law

Do I really need a shareholders agreement?

Shareholders agreements are important documents, even if there are only two shareholders. In particular they can ensure that if a shareholder wishes to transfer their shares, they are first offered to the remaining shareholder/s at an agreed price.  They also regulate a number of other important issues which are generally not dealt with in the company constitution.  For more information please visit our business law page.

Leasing - Commercial & Retail

How is rent determined under a retail lease?

When a new lease is entered into the landlord and tenant will negotiate the commencing rental.  The rent will be adjusted throughout the term in accordance with the rent review provisions in the lease (ie by a fixed percentage or amount, or in accordance with the consumer price index (CPI).

Upon renewal, the lease usually provides for the rent to be reviewed to current market in accordance with Section 37 of the Retail Lease Act 2003.  If agreement cannot be reached on the rental for the new term, the parties may require a valuer to determine the rent.  For more information please visit our Leasing - Commercial & Retail webpage.

Can a Landlord pass on costs associated with a lease to a tenant?

If the Retail Leases Act 2003 (Act) does not apply and the parties agree, the Landlord can pass leasing costs on to the tenant.

However, if the Act applies landlords are prohibited from passing on the their legal or other expenses relating to the negotiation, preparation or execution of the lease, costs of obtaining a mortgagee’s consent to the lease and costs associated with the landlord’s compliance with the Act.  Landlords can however claim from tenants reasonable legal or other expenses incurred in connection with an assignment of lease or a sub-lease, including investigating a proposed assignee or sub-tenant and obtaining any necessary consents to an assignment or sub-lease.

Intellectual Property Law

I'm starting a business, do I need to register a Business Name, a Trade Mark, or both?

Business Name registration is required whenever a person or company conducts a business in a name other than their own name. The main reason for this is to provide a data base of such names to enable the public to search and establish who is conducting the business of that name.

A Trade Mark is generally a name or stylised logo used in trade and commerce to identify particular goods or services. Registration is voluntary. Some people choose not to register a trade mark, usually for financial reasons.

For further information on Business Names and Trade Marks please visit our Trade Marks & Business Names page.

I've got a great idea, will copyright protect it?

The main aim is to protect the creative work of the copyright owner from unauthorised use.

Copyright cannot prevent others from having the same idea or concept. Copyright is said to protect the expression of an idea, not the idea itself.  For more information about copyright please visit our copyright page.

Employment Law

Do I have to sign a deed of release if my employment has been terminated?

An employee can only be required to sign a deed of release if they are being provided with a payment in addition to their standard entitlements, for example, a gratuitous redundancy payment. For more information please visit our employment page.

Superannuation

Can my SMSF buy a beach house for family use?

There are many rules to consider including the sole purpose rule, the inhouse asset rule, limited recourse borrowing, what business real property means, etc.  If you consider all these rules, then a proposal to buy a beach house for a members' family use would be non-complying and not recommended by any competent advisor.  For more information please ready Tony's blog article on the Rules and SMSF.

Commercial Litigation

What is the best way to take legal action against a company that owes me money?

The usual way is a letter of demand and then, if payment is not received, by issuing a Court proceeding. This could be in the Magistrates’ Court (for amounts up to $100,000), County Court, or Supreme Court. The defendant has between 10 and 21 days after service (depending on which Court) in which to pay or compromise the claim, or take steps to defend the proceeding. If the debt is not genuinely disputed, you could serve a statutory demand (and affidavit in support) on the registered office of the company. If they don’t pay or reach an agreement with you, or apply to set aside the demand, within 21 days the company is deemed to be insolvent and a Court proceeding can then be commenced to wind up the company.

Domestic Building Disputes

Insolvency

My company has received a creditor’s statutory demand. It arrived at our accountant’s office (the registered office of the company) about two weeks ago, but just got to me today. What should we do?

Act quickly! Your company only has 21 days after service of the demand to pay the amount, negotiate a compromise, or issue your own Court proceeding to set aside the demand (if the debt is genuinely disputed). It is not possible to extend this 21 day time limit, even by agreement. If you don’t do one of these things within 21 days, your company is deemed to be insolvent. The creditor can apply to wind up the company. This could have serious consequences for the company’s directors.

We received payment of a debt from a company about 6 months ago after we threatened legal action to get paid. The company has gone into liquidation and the liquidator has written to ask us to repay the amount to him!

Liquidators can take action to require repayment of preference payments which were received from insolvent companies before they were wound up. There are some defences that can be used, depending on the precise claim, including that you have no reason to suspect that the company was insolvent when you were paid. You should seek legal advice about this claim.