Coronavirus update – a letter from our Principals

To our Valued Clients,

Like you, we’re watching all the coronavirus (COVID-19) developments with increasing concern. Things are changing rapidly and daily, but our priority remains the health and wellbeing of our staff and clients during these uncertain and challenging times. This includes the continuation and resolution of any legal proceedings and matters.

We have taken all the necessary safety precautions and, for now, our offices will remain open. Here’s everything we’re doing to ensure we can continue to support our valued staff, clients and the community in response to COVID-19:

· Feeling unwell? If you’re experiencing flu-like symptoms, have travelled or come into contact with someone who travelled to high-risk areas, or have come into contact with someone who has tested positive please stay home and call your GP.

· Personal hygiene: We’ve stepped up our cleaning processes, and are wiping down all surfaces and doorknobs regularly. We ask our clients and staff to thoroughly wash their hands or use hand sanitiser before and after each visit. We have soap and water and hand sanitiser available in each office.

·  Social distancing: You’re still welcome to book a face-to-face meeting with us. Some of our team is now working from home, with essential staff members permitted to be in the office as per social distancing requirements of 1.5m between individuals.

· Virtual consultations: If you are in isolation, experiencing flu-like symptoms or feel unsafe to attend our office in person we can still provide advice, consultations, witness interviews and group sessions via telephone and Facetime.

· Online court: Although courts have closed and all in-person hearings and trials have been suspended, an online court system has been set up to deal with urgent matters. Therefore, we may still be able to attend court appearance and proceedings. We can also attend ‘e-court’ on your behalf if you’d prefer.

·  Financial assistance: If you have lost your job or income as a result of COVID_19 and are concerned that you may no longer be able to pay for your legal fees, speak with our compassionate expert team on what options are available to you.

Need COVID-19 related legal advice?

The continued spread of COVID-19 is also having a serious impact on our economy and our hearts break as we watch many local businesses struggle and jobs being lost as a result.

As experts in business and employment law, we can offer advice and support on a range of workplace legal matters including work, health and safety (WHS), employee leave and entitlements, debt recovery, business loans and lots more.

If you’re a business owner or an employee who is in need of urgent legal advice as a result of COVID-19, we offer a FREE one-hour initial consultation (normally only the first 30 minutes free).

We’ll continue to monitor the situation and let you know if anything changes. In the meantime, feel free to contact us with any concerns or questions regarding your matter on (03) 9741 6000.

We are here and will continue to serve our local communities in Werribee, Hawthorn and Moonee Ponds.

Helen LeBrun & Andrew Sutton

How is Inheritance Treated in a Separation?

Is your ex-partner making claim to your inheritance? Contact one
of our expert family lawyers for advice today.

In today’s society, separation and divorce are much more commonplace, but this doesn’t make dividing your property or assets any easier. There are several things to consider when separating from your partner. Deciding who gets what and whether someone is entitled to the other’s personal effects can be extremely tricky business.

Everyone has the right to protect their own interests, for example, you may have a property you wish to keep which was inherited during your marriage. However, you need to know where you stand legally when it comes to inheritance as every case is different.

To give you some insight on your personal situation, here we have outlined some common concerns when it comes to inheritance and separation:

Is My ex-partner Entitled to my Inheritance after we’ve Separated?

In some cases, your ex-partner might be entitled to your inheritance after you’ve separated but this depends on whether your inheritance qualifies as part of your marital assets. Marital assets refer to all property during the course of the marriage regardless of ownership or who holds the title of it. This is up to certain nuances within your relationship including:

• The timing you received the inheritance (whether it was received early on or right before you separated from your partner);
• Whether the assets from inheritance were shared e.g. a car or a lump sum of money which was placed into a joint bank account;
• Whether some of the inherited assets or funds were used during the relationship (e.g. whether they were used for a family business or home improvements); and
• The size of the inheritance (in comparison to the total pool of joint assets before the inheritance was received).

How are Marital Assets Divided? 

If you and your ex-partner cannot come to an agreement with how your marital assets should be divided including any inheritance, then normally you will need to attend family dispute resolution before any Court proceedings. The is the best way to avoid additional emotional and financial stress within your relationship.

If you cannot come to an agreement with your former spouse or de facto partner, then you will need to apply for property orders through the Courts. You should be aware that there is no guarantee with how assets will be determined and divided by a judge in Court. They will make their decision based on what evidence of your inheritance is presented in Court and on your individual circumstances with your partner, both personally and financially.

Get Professional Advice from an Expert Lawyer

Protecting your inheritance isn’t always straightforward. It’s always best to seek professional legal advice as early as possible so you can assess all your options and understand where you stand.

At Le Brun & Associates, we understand that separating from your partner is an extremely stressful and emotional time, that’s why we provide a free 30-minute consultation to assess your needs and inform you of your options. 

Contact our team of family and divorce lawyers today for advice and ongoing support.

Can Stepchildren Challenge a Will?

When it comes to Wills and Estates, each case is different. To ensure you
have the best options, receive expert advice from an experienced lawyer. 

In today’s world there are so many types of ‘modern families,’ with second marriages, adoption, foster children and anything in between becoming ubiquitous. Considering the amount of growing blended families over the years, it’s not an uncommon question to hear, “Can a stepchild or stepchildren challenge a Will?”

What does Victorian Law Say?

Rights of stepchildren vary slightly across each state in Australia. Previously, Victoria used to be one of the most flexible states in Australia for making a claim against a Will, as eligibility to contest a Will was not specified.

However, on January 1^st, 2015, legislative reforms became effective, detailing eligible people who could contest a Will. A list of eligible people who can contest a Will is provided in the Administration and Probate Act 1958 (Vic) s 90(c), which governs an eligible person’s right rights in relation to Wills and Estates. This list includes:

• A spouse or domestic partner (registered or unregistered at the time of death)
• A registered caring partner
• Adult children
• A grandchild
• A person who was (and was likely to be in the near future) a member of the deceased’s household
• A child of the deceased (including adopted or stepchild, or someone who believed the deceased to be their parent and was treated as such) who at the time of death was:
• Under the age of 18 years old;
• A full-full time student under the age of 25;
• Or suffering from a disability.

What Factors does the Court consider with the rights of a Stepchild?

Essentially, stepchildren are considered eligible people when it comes to contesting a Will but there are variable factors the court will take into account before ruling in their favour which include:

• Closeness of the relationship between the stepchild and step-parent
• Age of the stepchild and at what time they become a member of the family and
• The level of financial, educational and emotional support the stepchild depended on from the deceased.

Example of a Court Case involving Stepchildren 

Every court case is different depending on your individual circumstances, which is why its best to consult a lawyer to ensure you have a reliable claim to make. Here is a famous example of a court case in Victoria where a stepchild was successful in making a claim to a Will:

Bail v Scott-Mackenzie 2016 – This case showedthat the death of a natural parent does not cease the relationship between a step-child and step-parent. Additionally, it demonstrated that a natural parent and new partner do not have to be married for the new partner to be considered a ‘step-parent.’

What happened? Here the plaintiff’s mother, Ms Holmes, had been in a relationship with her domestic partner for 40 years. When the plaintiff’s mother, Ms Holmes, died, her domestic partner later commenced a new relationship with another woman who he remained with until his death in 2016. In his Will, the deceased left everything to his new partner. The dispute was whether, legally, the plaintiff was to be considered a stepchild despite her mother and the deceased never being married. The plaintiff was successful in her application with the judge ruling that a ‘stepchild,’ includes the child of a domestic partner as well as a child whose natural parent in a de facto relationship dies before the remaining step-parent instead of separating from them.

At Le Brun & Associates, we understand that life circumstances and family relationships can be unpredictable. That’s why we provide a FREE 30-minute consultation with one of our fully qualified and professional lawyers to discuss the best options for you.

If you need caring, compassionate advice or more information on your rights as a stepchild or step-parent, our experienced and compassionate family and property lawyers can advise you on sensitive matters and are dedicated to supporting you with accurate, fast and cost-effective advice.

What Happens if a De Facto Partner Dies without a Will?

If you have been living in a de facto relationship and
your partner dies without leaving a Will, you need to
seek legal advice as soon as possible.

When a person dies without a Will, this is known as dying “intestate”. This means that their Estate will be distributed according to intestacy rules outlined in the Succession Act. If you have been living in a De Facto relationship and your partner passes away, you have certain rights under intestacy law and may be entitled to receive part of your partner’s Estate.

Under the intestacy rules, a “spouse” is defined as a person who was:

a) Married to the deceased at the time of their death; or
b) Party to a domestic partnership with the deceased at the time of their death.

A “domestic relationship” is when two people are not married but live together or have lived together as a couple on a genuine domestic basis. This includes a de facto relationship that has been in existence for a continuous period of 2 years, has resulted in the birth of a child.

If this applies to your relationship with your partner, then intestacy rules will be applied when distributing your partner’s Estate.

What if intestacy rules don’t apply to me? 

If you were in a de facto relationship with your partner at the time of their death but do not meet the legal definition of a spouse under the intestacy rules, you can still receive a distribution from your partner’s Estate by lodging a family provision claim as an eligible person. It is recommended that you seek legal advice as soon as possible to contest the distribution of your partner’s estate and prevent their assets being allocated against their known wishes.

Understanding Your Rights in a De Facto Relationship 

Under the intestacy rules, if your partner had no children; or you and your partner only had children together, then you as a de facto spouse are entitled to the whole of the estate, including real estate, car, boat or shares.

However, if your partner had children from another relationship, then some of the estate may also go to those children depending on the amount of money left in the estate after all debt and funeral expenses have been paid. Different rules may apply if the person left behind more than one partner.

What do I do next?

If you have been living in a de facto relationship and your partner dies without leaving a Will, you need to seek legal advice as soon as possible to determine whether you are entitled to a distribution from the Estate under the intestacy rules or whether you need to make a family provision claim.

At Le Brun & Associates, we understand that life circumstances and relationships can be unpredictable. That’s why we provide a FREE 30-minute consultation with one of our fully qualified and professional lawyers to discuss the best options for you.

If you need caring, compassionate advice or more information on your rights in a de facto relationship, our experienced and compassionate family and property lawyers can advise you in sensitive matters and are dedicated to supporting you with accurate, fast and cost-effective advice.

Contact us today on (03) 9741 6000 to discuss your requirements.

What you Need to Know when Facing Criminal Charges

The law in Victoria states that anyone accused of an offence
is innocent until they are proven guilty in court. Always
seek legal advice as soon as possible if you’re being
charged for a crime.

Facing criminal charges is extremely stressful for any individual, their family and friends. A criminal offence or breaking the law is defined as a crime against the state. Seeking legal advice as soon as you’re charged is vital because you could be sentenced time in prison, given a substantial fine or both. Having an experienced criminal lawyer ensures you’re protecting your best interest by helping mitigate any charges held against you.

How you are Charged

Police usually charge people with criminal offences through:

• Arrest – If you are arrested, you may be held in custody until you can be taken to court where you can apply for bail.
• Notice to Appear – If you’re not held in custody by police, instead you may receive a notice to appear which provides a general description of what you’ve been charged with, when and where you must go to court. Police can issue a notice to appear on the spot.
• Application and Summons – This is a more formal charge in writing which has been sworn on oath before a justice of the peace and served on you. It requires you to appear in the local Magistrates Court a few weeks later.

If you fail to appear in court on the date instructed by your notice to appear or application and summons, the court can issue a warrant for your arrest and you may be charged with the offence failing to appear. In some cases, if you fail to appear, the court may automatically find you guilty and sentence you in your absence so it’s very important to make it on time.

Summary vs Indictable Offences

When it comes to criminal offences, there are two different categories, summary and indictable.

Summary Offences are much less serious than indictable offences. A summary offence could fall under property damage, offensive behaviour or careless driving. These cases are heard in the Magistrates’ Court where the outcome is determined by a judge.

Indictable Offences are more serious crimes such as sexual assault, murder, manslaughter and drug trafficking. Hearings for indictable offences take place in front of a judge and jury at the County or Supreme Courts. In certain cases, indictable offences such as theft or causing serious injury will be heard at the Magistrates’ Court.

Pleading Guilty or Not Guilty

The law in Victoria states that anyone accused of an offence is innocent until they are proven guilty in court. When it comes to pleading guilty, or not guilty, it’s essential to speak to a professional lawyer to discuss your potential outcomes. A criminal lawyer will be able to request the evidence from the police and make a full assessment of the strength of the prosecution case against you.

Why you Need a Dedicated Lawyer

Facing criminal charges can be a complex matter which is why your best option is appointing an experienced lawyer to provide you with expert advice. A dedicated criminal lawyer can help you with:

• legal and moral support during police interviews;
• reduce risks in court by presenting bail and other applications properly; and
• identify the weaknesses in the opposition’s case.

With an experienced lawyer, you can rest assured that they will look after your rights and work to your advantage throughout the course of your court proceedings.

At Le Brun & Associates, we understand facing criminal charges can be a daunting experience. Our expert, criminal lawyers with years of experience are here to provide you with ongoing support and sound advice no matter your circumstances. For a FREE 30-minute phone consultation, contact us today.

Protecting Your Assets from Creditors

Asset protection is an aspect of financial planning intended to protect your assets against creditor claims. Both individuals and business entities can use asset protection strategies to limit creditors’ access to their valuable assets whilst operating within the bounds of debtor-creditor law.

If your business does not have the appropriate structures in place or you have built up your entire wealth and property portfolio in your personal name, you may be vulnerable to loss of assets. Hence, it is worth seeking professional legal advice to ensure that your assets are well protected.

What do I need to know about seeking Asset Protection advice? 

Asset protection advice details the most appropriate company structure for your business and offers guidance with establishing the correct trust and tax structures as to the ownership of assets. A qualified Asset Protection lawyer can assist you in the protection of both your personal assets as well as those of your spouse as a result of challenging business periods, creditors’ claims or statutory demands. It is important that you, as a business owner, are equipped with the right knowledge as to debt collection and enforcement proceedings in order to minimise the loss of your assets in these circumstances.

What are the different types of trusts used to protect assets?

There are many common mistakes in asset
protection planning that can result in the loss of
personal assets. Always seek professional advice
to ensure that your assets are well protected.

A trust is an agreement where a person known as the “Trustee” is under legal obligation to hold property for the benefit of other parties, known as the “Beneficiaries”. The Trustee is the legal owner of the trust property.

There are many different types of trusts which can be used to protect assets:

• Discretionary trusts or family trusts are a popular business structure in Australia as they offer many tax advantages while still providing for asset protection if you’re using a corporate trustee. This type of trust suits certain businesses better than others so it’s worth consulting with a legal professional to determine if this is the right structure for your business. For example, if you wish to use your property assets for investment purposes, then you need to consider a property-specific trust.
• Testamentary trusts can be used to protect an inheritance from potential family law claims. A testamentary trust is commonly known as a “will trust” as these do not come into effect until after a death. The main benefits of testamentary trusts are their ability to protect assets and to reduce tax paid by beneficiaries from income earned from the inheritance.
• Binding Financial Agreement, commonly referred to as a “prenup” is an agreement between couples that states how assets, financial resources and liabilities will be divided if the relationship should break down. This is one of the best used and most cost-effective tool to protect assets. Learn more here.

Drafting the right trust and obtaining the correct advice as to the most viable trust structure is crucial to circumvent the loss of assets. This also ensures that each individual’s needs are met and takes into account their current financial situation. You should periodically seek advice on the suitability of the structure, particularly where financial or family situations changes in subsequent years.

What are the common mistakes people make regarding asset protection and how can I avoid them? 

There are several misconceptions and common mistakes that people in asset protection planning that can result in the loss of personal assets – in particular, owning assets in individual names, the use of company ownership and the improper use of certain types of trusts. To ensure the best possible outcome, always consult a legal professional to ensure you are receiving the right advice tailored to your individual and business circumstances.

At Le Brun & Associates, we support our diverse business clients in a variety of areas of law with specialisation in Asset Protection. We understand your needs and work closely with you to develop the right structures and strategies to avoid and minimise creditors claim against personal assets as well as claims threatening bankruptcy or closure of your business. 

We are recognised in Victoria for leveraging our extensive network to ensure you receive sound accounting and tax advice paired with legal strategies to develop a robust plan tailored to your business and individual circumstances. If you’d like to know more, we offer a FREE 30-minute consultation with one of our fully qualified and professional lawyers. Contact us today on (03) 9741 6000 to discuss your requirements.

Lodging a Caveat – Legally Protect your Property Rights in a Relationship Breakdown

Life circumstances and relationships can be unpredictable. It can be easy to make hasty decisions when it comes to moving in with a partner, getting married or purchasing a property together.

In both de facto relationships and marriages, it’s a very common occurrence for a property to end up in one person’s name. This leaves the other person who is not on the title with the risk and fear of losing out on the benefits of the property, despite any contributions they may have made towards it over the years, if the relationship were to breakdown.

If you have shared a property with a partner which was only contracted in their name and your relationship has ended, you may have a ‘caveatable interest’ in the property in order to lodge a claim, and protect your legal entitlements. Caveatable interests come in many forms but in order for one to be viable, the caveator (person lodging the caveat) must have some current legal or equitable interest in the property.

Lodging a caveat means your former partner cannot sell or borrow against the property without coming to a settlement with you first. However, you cannot just lodge a caveat if you feel you’ve been wronged because there are several penalties for lodging one without reasonable cause, so it’s really important to be cautious and seek legal advice beforehand.

Here are the guidelines of what you need to know about caveats in the instance that your relationship has ended:

What is a Caveat? 

Lodging a caveat can be more complicated than you might think, and if done falsely can result in
financial penalties. Always seek advice from a respected lawyer before you record a caveat.

The word caveat means ‘beware.’ A caveat is a document that any person with a legal interest in a property can lodge at Land Use Victoria. After recording, a caveat note appears on the title of the property, giving anyone dealing with the property notice that someone is claiming rights over it.

Most commonly when a relationship ends and the property is only in one partner’s name, a caveat is lodged because the other person is owed money, or they are seeking compensation because of their contributions to the property. However, having been in a marriage or a de facto relationship alone does not always give you reasonable cause to lodge a caveat. This must be determined under certain legal grounds.

What are the Grounds for Lodging a Caveat?

There are 44 available grounds for lodging a caveat in the state of Victoria. When it comes to Family Law matters, the majority of caveats are lodged on the basis of a constructive trust. A constructive trust is a duty by one person to hold some property for another person. A constructive trust is set up by a court as an equitable remedy (at the court’s discretion).

The most common reasons for a caveator to assert a trust in court include:

• They have made contributions to the value of the property which are not reflected on the title.
• They formerly transferred the property or their part of it to their spouse or partner.
• They have given financial contributions such as mortgage repayments.
• They have dedicated non-financial contributions such as hours of labour to maintain or improve the property.
• They were led to believe they had an interest or claim to the property from their partner.

For example, a typical scenario in court may involve a mother who has taken care of the children and household duties while the father has undertaken a career and contributed to the household financially. If the mother’s contributions have allowed the father the freedom to acquire financial gains and properties during the relationship, the mother can make a claim.

Why do I need Legal Advice for a Caveat?

Prior to recording a caveat on a property which is not in your name, you must always seek legal advice for your personal and financial sake. You may feel you have a caveatable interest on a property, but your individual circumstances may not hold up in court without professional guidance. Taking matters to court can also be costly and false claims can result in penalties, so you want to ensure that you are well informed about the complexities involved in lodging a caveat well in advance.

Do you think you have a caveatable interest on a property? At Le Brun & Associates, our experienced and compassionate family and property lawyers can help you lodge a caveat. We understand lodging a caveat is a sensitive matter, particularly in the event of a relationship ending. That’s why our team are dedicated to supporting you with accurate, fast and cost-effective advice. 

Contact us today for your FREE 30-minute consultation to discuss your best options.