FAQs

Yes. If the will is set aside, an earlier will may take effect or the estate falls into intestacy, and the named executor loses authority. Any grant of probate is revoked, acts done in good faith before revocation are generally protected, and beneficiaries may have to repay distributions. Executors facing a challenge should get urgent advice to protect against personal liability.

Most resolve without a final hearing, through negotiation or mediation, often with the professional's insurer. Where they cannot be settled, they proceed to court. We give a clear view of prospects, the likely cost, and the most efficient path to a result.

Generally costs follow the event, but the court has a broad discretion. Where the litigation was reasonably necessary, costs may be paid from the estate; where a party acted unreasonably, indemnity costs may be ordered. Costs should always be weighed against the value of the estate.

Through pre-litigation protocols, the power to order mediation, judicial settlement conferences, costs consequences for unreasonably refusing to engage, and Calderbank offers, where rejecting a reasonable offer can expose a party to indemnity costs. Genuine engagement is expected at every stage.

By the test from Banks v Goodfellow: the will-maker must have understood that they were making a will and its effect, the nature and extent of their estate, and the claims of those who might expect to benefit, free of a disorder of the mind affecting those decisions. A dementia diagnosis is not decisive, as capacity is judged at the moment the will was signed.

It sets standards member insurers must meet: timely claims handling, plain-language communication, qualified assessors, special provisions for declared catastrophes, financial hardship support, and clear internal dispute resolution with a right to escalate to AFCA. A breach of the Code can strengthen your position in a dispute.

Simple debt recovery can resolve in three to six months; mid-range matters in one to two years; complex Supreme Court matters longer. We manage cost with an early, realistic view of prospects, alternative dispute resolution, clear fee arrangements, proportionality and targeted discovery.

Weigh the nature and complexity of the dispute, the amount at stake, the urgency, the relationship between the parties, confidentiality, the enforceability you need, the other party's willingness to engage, and any dispute resolution clause in your contract. Often the best approach combines methods in a considered sequence.

If you have been served with a statement of claim you should act promptly.

You have 28 days from the date of service of the statement of claim to file a defence. If you do not file your defence within 28 days, the plaintiff can apply for default judgement. If default judgement is entered against you, the judgement will be recorded on your credit report and the plaintiff can take steps to enforce the judgement against you, unless it is set aside.

Yes, and it is critical. In NSW many negligence claims must generally be brought within three years from when you discovered, or ought reasonably to have discovered, the loss and its cause, with a long-stop period that can bar a claim regardless. Get advice as soon as you suspect a problem.

Claims based on equitable rights and remedies developed to prevent unjust or unconscionable outcomes. In NSW they are heard in the Supreme Court's Equity Division, which has inherent jurisdiction and specialist judges. Common claims include breach of fiduciary duty, trust disputes, unconscionable conduct, constructive trusts and proprietary estoppel.

You are entitled to written reasons under the Insurance Contracts Act 1984 (Cth) and the General Insurance Code of Practice, to an internal review by a senior officer not involved in the decision, and to escalate to AFCA, a free external scheme that can require the insurer to pay. For large or complex matters, court may be appropriate. Time limits apply, so act promptly.

Lower cost, faster resolution, confidentiality, control of the outcome, preservation of relationships, flexibility, and a high settlement rate. Court is public, slower and adversarial. Mediation is not suitable where there is a serious power imbalance, urgent relief is needed, or a party is acting in bad faith.

Significant personal exposure: liability for insolvent trading under section 588G of the Corporations Act 2001 (Cth), recovery of voidable transactions such as unfair preferences, claims for breach of directors' duties, penalties for illegal phoenix activity, and disqualification. Directors who suspect insolvency should get urgent advice.

A legal disagreement arising in business, from debt recovery to complex multi-party litigation. Common types include breach of contract, unpaid debts, misleading and deceptive conduct, shareholder and partnership disputes, intellectual property, construction, and insolvency-related claims. They are resolved through negotiation, mediation, arbitration or court, depending on the matter.

That the professional owed you a duty of care, fell below the standard expected of a reasonable professional in their field, that the breach caused your loss, and that the loss is recoverable. Expert evidence on the appropriate standard is commonly required, so an early, realistic assessment matters.

It must be shown that the will-maker's free will was actually overborne, not just that someone had influence. Relevant factors include the deceased's susceptibility, the influencer's opportunity and control, actual pressure, and a will reflecting the influencer's wishes. It is usually inferred from circumstantial evidence, and the burden rests on the person alleging it.

A fiduciary, such as a director, trustee, partner or solicitor, must act in the beneficiary's interests and avoid conflicts. A breach occurs where they profit from their position or prefer their own interests. Remedies include an account of profits, equitable compensation, a constructive trust, an injunction, and rescission.

A trust imposed by the court to prevent unconscionable conduct or unjust enrichment, declaring that a person holds property for another. It can arise from breach of fiduciary duty, knowing receipt or assistance in a breach of trust, a common intention about property, or proprietary estoppel. It gives a proprietary interest that ranks ahead of unsecured creditors.

A private, binding process where an arbitrator decides the dispute and issues an enforceable award. It suits contracts with an arbitration clause, technical disputes needing a specialist decision-maker, confidential matters, and cross-border disputes. Awards are enforceable as court judgements and can only be challenged in limited circumstances.

Negotiation can be direct or informal and can include mediation (a neutral facilitates agreement) or conciliation (the neutral also advises on merits). They can also be by arbitration (a binding award), expert determination (an expert decides a technical issue) or litigation (a court decides). The right choice depends on the dispute, the amount, the urgency and the relationship.

Liquidation winds up a company, realises its assets and distributes them to creditors, then deregisters it. The three types are creditors' voluntary liquidation (the most common), members' voluntary liquidation (a solvent wind-up), and court-ordered (compulsory) liquidation, usually for failure to comply with a statutory demand. A liquidator can investigate and pursue claims against directors.

It is where a professional fails to exercise the care and skill reasonably expected of someone in their field, and that failure causes you loss. Examples include negligent financial or accounting advice, a defective valuation, or a flawed engineering or building report. You generally need to show a duty of care, a breach of the proper standard, causation, and loss.

It prevents a person from asserting strict legal rights over property where that would be unconscionable, given a representation and the other party's detrimental reliance on it. It needs a clear assurance, reasonable reliance, detriment, and unconscionability. Remedies range from transferring title to compensation, fashioned as the minimum equity to do justice.

Personal insolvency applies to individuals, under the Bankruptcy Act 1966 (Cth), administered by AFSA, and includes bankruptcy, debt agreements and personal insolvency agreements. Corporate insolvency applies to companies, under the Corporations Act 2001 (Cth), administered by ASIC, and includes voluntary administration, liquidation and receivership.

Under the Insurance Contracts Act 1984 (Cth) you must disclose, before the policy starts or renews, what you know (or a reasonable person would know) is relevant to the insurer's decision. Non-disclosure can let the insurer avoid the policy (if fraudulent), reduce the payment, or vary the terms. There are limits, so if an insurer relies on non-disclosure, get advice to test their position.

If it cannot be resolved by agreement, it proceeds in the Supreme Court: filing an originating application with affidavit evidence, service on the executor and interested parties, discovery and subpoenas, expert medical evidence where capacity is in issue, mediation (where most matters settle), and a final hearing if needed. Early advice on prospects and cost is essential.

Where one party takes unconscientious advantage of another's special disadvantage, such as age, illness or vulnerability, that was evident to them. The main remedy is rescission, setting the transaction aside, plus return of property and compensation. It sits alongside the statutory protections in the Australian Consumer Law.

A process under the Corporations Act 2001 (Cth) that gives a distressed company breathing space. Directors appoint a registered administrator, a moratorium stops creditor enforcement, the administrator investigates and reports, and creditors vote to enter a deed of company arrangement, return the company to its directors, or place it in liquidation. It is time-critical.

Review the contract and evidence, send a formal letter of demand, preserve all relevant documents and records, attempt negotiation or mediation, get advice on your prospects, and check the limitation period. These steps strengthen your position, often resolve the matter without court, and courts look favourably on a party that tried to resolve things first.

Damages, judgement for a debt with interest, specific performance, injunctions (including urgent orders), declarations of your rights, an account of profits, and in some cases winding up a company. We pursue the remedy that actually fixes your problem.

An informal workout with key creditors, small business restructuring (for eligible companies under $1 million in liabilities, with directors staying in control), a deed of company arrangement, a scheme of arrangement, and the safe harbour protection under section 588GA. Early intervention is the single biggest factor in a successful restructure.

Understanding the basis of the dispute is the first step in challenging it. Common claims range from storm versus flood damage (where the distinction can be technical and one may be excluded), fire damage (especially where cause is unclear) and water damage (often disputed as gradual damage or lack of maintenance). They may also involve theft or business interruption, often because of disputes about the amount payable or policy exclusions.

When your claim is denied or reduced, the amount in dispute is significant, the insurer alleges non-disclosure, the policy interpretation is complex, delay is causing hardship, or you are dealing with a total loss or a natural disaster claim. In these situations, experienced advice can materially improve the outcome.

It depends on the amount and nature of the claim. In NSW, the Local Court handles claims up to about $100,000, the District Court up to about $1.25 million, and the Supreme Court the largest and most complex matters, with a well-regarded Commercial List. Federal matters, such as some Corporations Act claims, go to the Federal Court.

A range of professionals, including accountants, financial advisers, mortgage brokers, engineers, architects, building consultants, valuers and other advisers, where their negligent advice or work caused loss. Most carry professional indemnity insurance, so the claim is usually managed by their insurer.

If you are owed money, prior to commencing proceedings you should first consider sending a letter of demand to the debtor requesting payment of the amount owing to you.

If after sending the letter of demand you are still not paid, you can commence legal proceedings to recover the amount owing. Legal proceedings are commenced by filing a statement of claim in either the Local Court, District Court or the Supreme Court, depending on the amount that is owing. You can also commence proceedings to recover a debt by filing an application in the New South Wales Civil and Administrative Tribunal (NCAT).

Different procedures apply in different Courts and Tribunals but generally, if the claim is disputed there will eventually be a hearing and a judicial officer will decide the case. If the defendant does not file a Defence within 28 days of being served with the statement of claim, you can apply for default judgement to be entered against the defendant in Courts, but you may still have to prove the amount owed. In the NCAT there is no default judgement procedure. Once judgement is entered against a defendant you can take steps to enforce it.

If a court or Tribunal has entered judgement ordering another party to pay money to you and the other party fails to do so, there are a number of ways of enforcing the judgement. Some common enforcement actions are as follows:

1. Garnishee order: an order from the court to have money taken from the judgement debtor's bank account or wages.
2. Writ for the levy of property: this allows the sheriff to sell property belonging to the judgement debtor to pay back the debt.
3. Examination notice or order: provides information about the other party's financial situation.

You can usually recover the costs of enforcement and any interest that has accrued since the judgement was entered. You have 12 years from the date of the judgement to enforce it.

Yes. Either parent can apply for a change of assessment for reasons such as a significant change in income, a change in care, or special circumstances, and assessments update when income or care changes. Parents can also agree a new amount. Changes usually take effect from when you notify Services Australia, so act promptly.

Yes. A financial agreement can divide property and deal with spousal maintenance, including excluding future maintenance claims, or setting the amount, frequency and duration. Note that an agreement excluding maintenance can be set aside if, at separation, the party who waived it would otherwise be eligible for a social security payment.

Yes. A pre-relationship agreement, often called a pre-nup, is a section 90B agreement for married couples or section 90UB for de facto couples. It is sensible where a party brings significant assets, a business or an inheritance, has children from a previous relationship, or where there is a wealth disparity.

Yes. An informal arrangement is flexible but not legally enforceable. A limited child support agreement must be at least the Services Australia assessment and can be ended after three years. A binding child support agreement can be for any amount or a lump sum, but both parents must get independent legal advice first, and it is harder to change.

Yes, formalise it: an informal agreement can be reopened years later. Married couples have 12 months from the date the divorce is finalised, de facto couples 2 years from separation, and applying late needs the court's permission. Formalising can also unlock stamp duty and capital gains tax concessions on transfers made under orders.

Usually not. Most parenting disputes are resolved without a hearing. Generally you must make a genuine attempt at family dispute resolution first, then formalise the agreement in a parenting plan (a clear record, but not legally enforceable) or consent orders (legally binding). Court is a last resort.

The standard formula is meant for everyday costs such as food, clothing, housing and basic education. It does not cover everything: private school fees, medical and dental, childcare, special extracurricular activities and international travel are often not included. These can be dealt with separately in a child support agreement or court order.

A trust or company does not automatically shield assets. The court can look at who really controls and benefits from the structure, and may include those assets or their value in the pool, particularly where a party is trustee, appointer or sole director. Business interests may need a formal valuation. We work with forensic accountants and valuers on these.

Get legal advice first so you know your rights, organise your financial information if property is in issue, focus on the children's needs, manage your emotions (a counsellor can help), be ready to compromise, and think about the long term. Good preparation makes agreement much more likely.

Under the Family Law Act 1975 (Cth), the paramount consideration is the best interests of the child. The court weighs the safety of the child and carers, the child's views, the child's developmental, emotional, psychological and cultural needs, each parent's capacity to meet them, and the benefit of a relationship with each parent, along with any history of family violence.

The Child Support Agency (through Services Australia) applies a formula based on each parent's adjusted taxable income, the cost of children (from tables based on income, number and age of children), and the share of nights each parent cares for the children. It produces a yearly figure paid in instalments. An online estimator gives a guide, but advice helps with your specific circumstances.

There is no automatic 50/50 split. The court follows a process under the Family Law Act 1975 (Cth) to: identify and value the asset pool, assess contributions, consider current and future circumstances, and reach a just and equitable outcome. Every matter turns on its facts.

Super is treated as property and can be split by a superannuation splitting order or agreement. A split is not a cash payment: it transfers into the receiving party's fund and stays subject to preservation rules. Accurate valuation matters, especially for defined benefit funds, and super can be split or offset against other assets.

Generally yes: the Family Law Act 1975 (Cth) requires a genuine effort at FDR first. Exceptions include family violence or child abuse, urgency, and incapacity.

A divorce is the legal dissolution of a marriage by a court. Parties need to be separated for 12 months before they can apply for a divorce. Whilst it is important to get a divorce, you may need to be thinking about a property settlement, which is the severing of the financial relationship of the parties. Dividing assets such as a house, car, superannuation or other monies is a property settlement. The division of assets of the parties is determined on contributions made by each party throughout the relationship. The length of a relationship can also be a significant factor.

Lower cost, faster results, and more control, because you and the other party decide rather than a judge. It is private, supports a better ongoing co-parenting relationship, and allows flexible, tailored solutions a court may not be able to order.

Generally all assets of either party, regardless of whose name they are in or when acquired: the family home and investment properties, superannuation, bank accounts, shares, business interests, vehicles, and sometimes inheritances and gifts. Debts are included too, and assets in trusts or companies are not automatically excluded.

Where child support is managed by Services Australia, it has strong powers: employer withholding, garnishing bank accounts, intercepting tax refunds, departure prohibition orders, and registering the debt. For private arrangements or court orders outside the system, you may need to apply to court to enforce. Get advice quickly, as arrears build fast.

After attending FDR, either party can commence proceedings in Court. The court process then involves filing and service of court documents, a first court date, any interim orders, often a further round of dispute resolution, and a final hearing if needed. Most matters still settle by agreement before a final hearing.

The Family Law Act 1975 (Cth) has a contravention regime. Where a parent fails to comply without a reasonable excuse, the court can make a finding, order make-up time, vary the orders, require a parenting program, and in serious cases impose penalties. Document each incident and seek advice, rather than withholding the child in response.

A financial agreement is a private contract under the Family Law Act 1975 (Cth) that does not need court approval and, if validly made, prevents a later property claim. Consent orders are agreed terms approved by the court that carry the force of a court order. Financial agreements offer privacy and flexibility but more legal risk if not properly prepared; consent orders have the benefit of judicial scrutiny.

It is a structured mediation that helps separating couples resolve parenting, property and other issues without court. A trained, accredited practitioner assesses suitability, then guides both parties through the issues. It is generally confidential, and usually quicker, cheaper and less stressful than court.

Parental responsibility is a parent's duties and authority for the child. Decision-making responsibility is the authority over major long-term decisions (education, major health, living arrangements), which can be sole or joint. "Live with and spend time with" is the separate question of where the child lives and how much time they spend with each parent.

It must be in writing and signed, and before signing each party must receive independent legal advice from a separate lawyer about its effect and its advantages and disadvantages, with each lawyer signing a statement confirming the advice. Missing any requirement can make the agreement void, so templates without proper advice are risky.

On grounds including fraud or non-disclosure of a material asset, unconscionable conduct, undue influence or duress, impracticability, a significant change in circumstances affecting a child, or where the agreement is otherwise void under contract law. Full disclosure, genuine advice and good faith make an agreement far harder to challenge.

Generally a de facto relationship is considered to be 2 years. However, this may change depending on financial contributions or if there are children of the relationship. Even if parties are found to be living in a de facto relationship, it does not automatically entitle them to a share of each other's assets.

In order to be entitled to a share of the other's assets, it is necessary for a party to establish that they:

• Have been living together for a period of at least 2 years (either consecutively or accumulatively); or
• Have a child together; or
• Have made substantial contributions (financial, non-financial or as homemaker or parent) to the acquisition, conservation or improvement of any property of the parties to the de facto relationship; or
• That a failure to make an order would result in serious injustice to the applicant.

A Financial Agreement is a legal agreement between a couple who are entering a relationship, in a relationship, or ending a relationship. It relates to financial matters of the parties and is worthwhile entering into if you have assets of value that you wish to protect should the relationship end. Both parties need to enter into the agreement willingly and receive independent advice, that is, each party will need their own independent solicitor.

Whether it is a property settlement division or arrangements for children and parenting, the first step is to speak with someone about your rights, entitlements and obligations. Meeting with a lawyer is the first step. In property matters, defining the assets and liabilities of the parties is most important. In parenting matters, determining what is in the interests of the children is the primary consideration.

In most cases, no. Super is held in trust by your fund and sits outside your will. Unless you have a valid binding death benefit nomination, the trustee has discretion over who receives your death benefit, so super needs to be planned alongside, but separately from, your will.

Tax dependants, such as a spouse, de facto partner, minor children and financial dependants, generally receive the benefit tax-free. Non-tax dependants, such as adult children who were not financially dependent, may be taxed on the taxable component. If the benefit is paid to the estate, the tax depends on who ultimately receives it. Seek legal and financial advice when structuring nominations.

Your fund's trustee decides who receives your benefit and in what shares, guided by the fund's rules and the law. The outcome may not match your wishes and can cause delay and disputes, particularly in blended families. A current binding nomination is one of the most important steps you can take.

It is a written direction that legally binds your fund's trustee to pay your death benefit to the people you nominate, unlike a non-binding nomination, which the trustee may consider but need not follow. It can only favour eligible dependants or your estate, and many nominations lapse after three years unless renewed.

Under the Superannuation Industry (Supervision) Act 1993, only a dependant (a spouse or de facto partner, a child of any age, a person in an interdependency relationship, or a financial dependant) or your legal personal representative for distribution through your estate. Adult children who are not financially dependent may be taxed more heavily.

Yes. In NSW, a family provision claim must generally be brought within 12 months of the date of death. The Court can extend this in limited circumstances, but an extension is not guaranteed, so it is important to act promptly.

Yes, at any time while you have capacity, by making a new will that revokes earlier ones or, for a small change, a codicil. Review your will after major life events. In NSW, marriage generally revokes a prior will, and divorce can affect gifts to a former spouse.

Yes. Without a valid will you die intestate, and your assets are distributed under the NSW intestacy rules, which may not reflect your wishes. A will also lets you appoint an executor, nominate a guardian for young children, and make specific gifts to people or charities. Even a modest estate benefits from clear instructions, and superannuation death benefits are often larger than people expect.

Most are resolved without a final hearing. Courts usually require the parties to attend mediation, a confidential process that is quicker, less costly and less stressful than a hearing and gives the parties more control. If mediation does not resolve it, a judge decides based on the evidence, and legal costs may be drawn from the estate.

In straightforward cases a grant often issues within four to eight weeks of lodging, subject to the Court's processing times and the notice period (usually at least 14 days after the probate notice is published). Complex estates take longer, and administering and distributing the estate can take several further months.

Court filing fees (set on a sliding scale based on the value of the estate), the publication fee for the probate notice, and legal fees, which vary with complexity. These are generally paid from the estate rather than by the executor personally. Errors in a do-it-yourself application can cause delay and extra cost.

Lack of testamentary capacity, undue influence, fraud or forgery, improper signing or witnessing, lack of knowledge and approval, and family provision claims where an eligible person was left without adequate provision. Each ground has its own legal tests and evidence requirements.

It means formally challenging a will, either by disputing its validity (for example, lack of capacity, undue influence, or improper signing) or by making a family provision claim that you were left without adequate provision. It is a serious step with strict eligibility rules and time limits, so seek advice early.

They die intestate, and the estate is distributed under the NSW intestacy rules, which prioritise a spouse or de facto partner, then children, then more distant relatives. The next of kin must apply for letters of administration before the estate can be dealt with, adding delay and cost. A current will avoids this.

A testamentary trust is created within your will and takes effect on your death, holding and managing assets for beneficiaries rather than distributing them directly. It can offer asset protection, tax advantages for minor beneficiaries, and control over how and when assets pass. It is worth considering if you have a blended family, young children, a beneficiary with special needs, or significant assets.

Probate is a grant from the Supreme Court of NSW that recognises a will as valid and confirms the executor's authority. It is usually required when the deceased held assets in their sole name that an institution will not release without a grant. If assets were held jointly, or the estate is small, probate may not be necessary.

A will takes effect only after your death, and the executor often needs a grant of probate first. A family trust is created during your lifetime, with a trustee managing assets for beneficiaries, and assets in it can pass without probate. A trust is more complex and costly to run, so the right choice depends on your circumstances, and we work alongside your financial adviser.

In NSW a will must generally be in writing, signed by you, and witnessed by two independent adults who sign in your presence, and you must be 18 or older and have capacity. A beneficiary, or a beneficiary's spouse, should not be a witness. Because small errors can invalidate a will, it is worth having it prepared professionally.

For a family provision claim in NSW, eligible persons typically include a spouse or de facto partner, children including adult children, former spouses in certain circumstances, and certain dependent grandchildren and household members. For a validity challenge, any person with a sufficient interest, such as a beneficiary under an earlier will, may have standing.

The executor named in the will, who must gather and protect the assets, pay debts, and distribute the estate under the will. If there is no will, or the executor cannot act, the next of kin can apply for letters of administration, which authorises them to administer the estate under the intestacy rules.

These are difficult situations but we can help you investigate the loss and raise concerns early.

If a dismissal is found to be harsh, unjust or unreasonable, the grant of a remedy by the Fair Work Commission is discretionary and not automatic.

If the Fair Work Commission makes a finding that you have been unfairly dismissed, it may make an order reinstating your employment or for your employer to pay you compensation.

An order for compensation will generally only be made where the Fair Work Commission considers it is not appropriate to make an order reinstating your employment.

If you think you have been unfairly dismissed, you should act promptly.

You may be able to make an application for unfair dismissal in the Industrial Relations Commission or the Fair Work Commission.

An application for unfair dismissal must be filed within 21 days of the date of dismissal. This is a strict time limit and will only be extended in limited circumstances.