Phone: (08) 8314 7575 | After hours: 0412 975 081

Phone: (08) 8314 7575 | After hours: 0412 975 081

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Frequently Asked Questions

Reading our list of Frequently Asked Questions can often help you get a clearer understanding of your matter before attending at one of our offices.

It is worth spending a few minutes of your time to check the list of questions and answers below.

In those sub-sections we set out helpful information.

It may also help you, if you go to the Home page, click on Areas of Law and then click on the particular sub-section applicable to you, for example Wills and Estates or Public Liability and Injury Claims.

The information may help clarify your thoughts and prepare you for your meeting with one of our solicitors or advisers. 

The Frequently Asked Questions are set out in sections according to the areas of law in which we operate:


Motor Vehicle Accident Claims

Q1. I have sustained an injury, can I receive accident compensation?
A. If you are injured as a result of a motor vehicle accident that was not your fault, or not entirely your fault, you may well have a claim. There is a threshold test for the injuries you suffer that you must exceed before you are entitled to claim pain and suffering. It is important that advice is sought as soon as possible so that your rights are preserved.

Q2. What might I get for accident compensation? How does the accident compensation process work?
A. Generally you will only have a claim if the accident resulted from the negligence of another driver. We provide you with advice about what is required to prove negligence. In some cases you may also have a claim even if you were partly at fault.

Once we have established ‘fault’ (known as liability), we will then advise you on how to prove the extent of your injuries and loss. This is commonly referred to as the quantum (amount) of your claim. At a minimum, we will need to obtain medico-legal reports from your doctor(s).

Q3. What are my entitlements when it comes to compensation?

A. The law divides the compensation you can receive into many different categories including:

  • The pain and suffering you have endured.
  • Any residual disability or scarring you may have from your injuries.
  • Time off work or loss of work opportunities.
  • The cost of medical treatment you have received and will need to continue to receive.
  • The market value of the help that your spouse, parents or children have given you due to your injuries.
  • The effect of your injuries on your ability to earn an income in the future.
  • Some categories of compensation have the potential to attract large sums of compensation while for  other categories including pain and suffering, parliament has effectively capped the amount of money that can be paid out.

    The law in this area is complicated and therefore it is very important that you engage a solicitor to maximise your claim as soon as possible. Evidence may need to be gathered soon after the accident to assist your claim.
Q4. How much will my claim cost? Do you do “no win – no fee”?
A. We offer “no win no fee” for these matters. This means that we do not charge you for our legal fees unless we are successful in obtaining compensation for you compensation. If your claim does not succeed we will not charge you legal fees.

If you succeed in your claim, the insurer will ordinarily pay a large portion of your legal fees.

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Public Liability and Injury Claims

Q1. I have sustained an injury. Do I have a claim for compensation?
A. If you are injured as a result of a slip and fall, or some other similar accident that was not your fault, you may well have a claim. It is important that you find the person, company, or business responsible for your injury. We can conduct searches and investigate who was at fault for your injuries. You can then claim compensation from them.

Q2. How is it decided whether I get compensation for my injuries?
A. You will only have a claim if the injuries and losses resulted from the negligence of another person, or company. We can provide you with advice about what is required to prove negligence.

Once we have established ‘fault’ (known as liability), we will then advise you how to prove the extent of your injuries and loss.

This is commonly referred to as the quantum (amount) of your claim.

Q3. What am I entitled to be compensated for?
A.The law divides the compensation you can receive into many different categories including:

  • The pain and suffering you have endured.
  • Any residual disability or scarring you may have from your injuries.
  • Time off work or loss of work opportunities.
  • The cost of medical treatment you have received and will need to continue to receive.
  • The market value of the help that your spouse, parents or children have given you due to you injuries.
  • The effect of your injuries on your ability to earn an income.

Some categories have the potential to attract large sums of compensation while for others, including pain and suffering, the law has effectively capped the amount of compensation that can be paid.

The law in this area is complicated and it is therefore very important that you engage a solicitor to maximise your claim.

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Family Law and Parenting Matters

Q1. What should I do if I want to separate from my partner?
A. It is important to update yourself on the family finances including the superannuation, mortgage and bank account balances of both partners. This knowledge will help ensure that you get your fair share of the asset pool in your property settlement.

You should also consider meeting with a solicitor from Scammell & Co. prior to separation. We can advise you of your rights and provide an early estimate of how the law would divide the assets of the relationship. With this knowledge, you will be able to begin discussions with your partner with confidence.

Should there be any dispute, our solicitors can advise you. For example, on how the law approaches parenting arrangements between separated parents.

Q2. Will the children have to divide their time between me and their mother / father?
A. Depending on the ages of the children they will usually live with the parent who has
been their primary carer and spend time with the other parent. Although responsibility for the children is generally shared equally between parents, this does not mean each parent has equal time with the children. There are many circumstances to consider in regard to the arrangements for the children. The arrangements may change as the children grow older. We will advise you on how best to protect your relationship with your children.

Q3. What if the children don’t want to go with the other parent?
A. The Family Court considers that it is in a child’s best interests to have a relationship with both parents. However, the Court would take into account the views of older children. Sometimes difficulties arise due to your work or other commitments. We can assist you to reach a satisfactory agreement suited to your individual needs. Where there is a history of violence or abuse, the Courts will seek to protect the children and special arrangements may need to be made.

Q4. What if I want to keep the house and care for the children?
A.
Your lawyer will advise you how to negotiate a division of property that will best suit your preferred arrangements for the children, your employment and your future financial security. You will also be advised about child support payments and whether you may be successful in obtaining spousal maintenance.

Q5. What if I am being prevented from seeing my children?
A. We will assist you to negotiate an arrangement that will ensure you maintain a relationship with your children. It is in your children’s best interests to have a good relationship with each parent even after separation, unless there are circumstances of violence, abuse or neglect. If needed, we can obtain a Court Order.

Q6. If I live with my partner who owns the house we both live in, do I have an interest in the house?
A. Your direct financial contributions to the mortgage as well as your non-financial contributions such as home-making must be considered when dividing property. It is therefore most likely that you will have an interest in the house. Scammell & Co. can assist you to determine whether you have a claim on your current or ex-partner’s house.

Q7. Do I need a solicitor if I can agree a division of property with my partner?
A. Yes, you need a solicitor. You will remain vulnerable to future claims for property by your partner unless you have a Court Order or a legally binding agreement. If you are divorced, a property claim can be made within twelve months of your divorce.

While Consent Orders can be entered into without legal advice, you may be at risk if you agree to a division of property by Court Order without first seeking the advice of a solicitor. Legal division of property by Court Order is final and it is essential that you are fully informed of your entitlements and any potential disadvantages to you before entering into an agreement.

Property settlements can become complicated, especially where there is a diverse range of assets. You should not agree to a split of the property of the relationship without fully understanding your legal rights, the value of the assets of the relationship, the proposed division and the tax consequences.

Your solicitor can assist you to formally record your agreement through Court Consent Orders or a Binding Financial Agreement. Your Consent Orders or Binding Financial Agreement must be carefully drafted so that the effect you both intended is properly recorded.

Without a Court Order or Binding Financial Agreement your agreement would not be enforceable under the Family Law Act (Cth) 1975. Also, your agreement could be altered at a later date by a Court, to your disadvantage.

Q8. If I inherit money during my relationship, do I get to keep it all if we separate?
A. Not necessarily. The inheritance monies you had not spent by the date of your separation would likely form part of the asset pool for division between you and your partner. Similarly if you used the money to purchase assets, they would also form part of the asset pool. Careful estate planning prior to separation may allow you to maintain control over the inheritance. Scammell & Co.’s experienced solicitors can provide you with tailored advice on your particular circumstances.

Q9. Do I need a new Will when I separate?
A. Marriage itself revokes any Will that the parties had on marriage unless the Will refers to contemplation of that particular marriage.

People often separate but forget to change their Will. This means the former spouse inherits their estate and children or a later partner may miss out. It also leaves any new partner able to challenge your Will through messy and expensive Supreme Court proceedings. Potential for such conflict is best avoided by making your intentions clear in a new Will.

Whenever a married couple separate, each person should renew his or her Will, ensure they have appointed Powers of Attorney and Guardianship and if necessary, change the nominated beneficiary of their superannuation funds.

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Commercial and Company Law

Q1. What are some of the traps people should look for when buying or selling businesses?
A.The traps are many.
Just some you should be aware of include:

  • Unnecessary tax liabilities created.
  • Inappropriate lease terms which can make it difficult to resell the business.
  • When buying a business – possibly more so in the case of smaller family businesses - checking that the wages costs shown for the business are not understated. For example, sometimes in a family business, run by a husband and wife, the wife may be attending each day, and putting in a full day, but no wages are paid and thus the cost of that person’s input is not showing as a cost in the Profit & Loss Statement.
  • Danger of being sued through inadvertently failing to comply with regulations.
  • Dangers arising from purchasing a non-performing business because of a failure to make adequate investigation.

Q2. When running a small business, extending credit to customers can present problems. For example, if I extend no credit to customers I can lose orders to those competitors who do extend credit. What steps could I take regarding the following for example points?

  • Preventing bad debts.
  • Assessing a reasonable amount of credit.
  • Obtaining director’s guarantees from customers.
  • Arranging a contract to retain ownership of the goods until payment is received in full.

 A. There are many different answers, according to the nature of the business.

Solicitors at Scammell & Co. have advised a wide range of businesses on the abovementioned issues and more.

The short answer is contact Scammell & Co. to arrange a discussion. The first half hour of your first meeting will be free, so you can get some specific advice at no cost to you.

Q3.What kind of business structure is best when setting up a new business or changing an existing business?
A.
The type of business structure suitable to a particular situation will depend on a number of factors relevant to each set of circumstances.

For example, in certain situations a partnership may be preferable to a company, or vice versa.

Often tax and risk considerations apply when choosing which business structure is suitable for you.

Q4. How can business owners protect their business assets as well as their personal assets?
A. The type of business structure you put in place will play a crucial role in protecting your business assets as well as putting your personal assets beyond the reach of creditors.

There cannot be absolute protection of assets in every situation but there are measures that can be taken to minimize exposure of assets to creditors’ claims.

Business Sales
Q1. Should I, when selling a business provide Vendor finance?
A. Providing Vendor finance is often a way to get a higher price for the business. However, there are many risks. For example, if the new owner is not an effective operator of the business and loses money, the chances are he will not be able to pay.

A further example of risk associated with Vendor finance – the new owner may decide, after occupying the business for a period of time, that he / she was mislead about the value of the business and paid too much. it. He / she may then perhaps refuse to pay the balance of the purchase price.

A Vendor who provides finance to a Purchaser is always taking a risk – even if he has good security.

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Compulsory Acquisitions of Property, Assets and Businesses

Q1. What do I do if I am faced with a claim for compulsory acquisition of my property?
A. Firstly, you should seek the advice of one of our solicitors. It may be that you are entitled to resist the acquisition and can block the acquisition.

Secondly, if you cannot prevent the acquisition, we can assist you in ensuring you obtain the maximum compensation for your loss.

Q2. What kinds of claims can I make?
A.You can make claims for many types of loss and damage including the following:

  • The value of the property acquired.
  • The value of any plant and equipment acquired.
  • The damage and loss to any business which may be conducted on the acquired property.
  • Loss of past and future profits from the use of the acquired property and the business.
  • Loss of enjoyment of the property.
  • Cost of relocating.
  • Replacement costs.
  • Your legal costs.
  • Any other reasonably related cost or loss.

Q3. How do I make a claim?
A. Consult Scammell & Co. who will assemble evidence to prove the maximum value of your claim. This may include obtaining expert’s reports such as those of specialist valuers and accountants. Your experts need to be specialists in preparing valuation and accounting evidence – to give your claim credibility. It is essential that the process of preparing such evidence is carefully managed.

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General Legal Action / Financial Loss Claims

Q1. What are compensation claims and other types of claims?
A. You can claim compensation for a direct loss, usually a loss caused by another person or company. The loss might be damage to your property or assets, a personal or business loss, libel (defamation), other financial loss, a breach of copyright or some other misuse of your intellectual property.

Q2. What is the method for calculating damages (the amount of the claim)?
A. The amount is different in each case. In a general sense the Court will try to put you in a position as if the event causing the loss had not occurred.
Q3. Which Court will hear my case?
A.
It depends on the value of the claim and it may be a State or a Federal Court.

Q4. Is there a time limit?
A.In most cases of property damage or financial loss there is a six year time limit, but it can be as little as one month.

However, it is prudent to be quick. If you delay, you run the risk of your claim being barred by lapse of time.

Some cases have much shorter time limits, e.g. as little as two days.

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Liquor Licensing

Q1. Who is entitled to apply for License?
A1. In order to qualify to obtain a Liquor Licence you need to have a substantially clean slate with the Police. The Police are entitled to object to the granting of the Licence.

Additionally, the Police may object if the actual premises have a bad history with other operators.

A2. You will need to satisfy the Court that you have adequate financial resources and preferably adequate business experience to undertake the conduct of the Licence.

Q2. Who can share in the profits?
A1. Only the Licence holders are entitled to receive profits from licensed premises. If the Licence Holder is a Company then the shareholders must be approved by the Liquor Licensing Commission.

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Property Transfer and Conveyancing - Domestic and General

Buying
Q1. I am not sure about the two different forms of property ownership; joint tenants on the one hand and tenants-in-common on the other. Can you please explain?

A. If you and your spouse / partner have purchased a property as joint tenants then, on your death, the property automatically becomes the property of the surviving joint owner.

You cannot, in your Will, leave your share of the property to anyone else.

If you and your spouse / partner have purchased a property as tenants-in-common then your share in the property is held separately and, after your death, your specific share forms part of your estate and is distributed in accordance with your Will. If you do not leave a Will then your estate, including your share in the property, is distributed in accordance with the laws of intestacy.

Q2. What is my right to cool off?
A. In many cases (not all) you have two business days to cool off after signing to purchase a property. If within those two days you serve an appropriate Notice on the Vendor or the Vendor’s agent you may ‘cool off’. However, you need to be aware that this does not always apply.

Q3. I have purchased a house prior to auction and the selling agent has asked me to waive my cooling-off rights. What should I do?
A. Make an appointment to see one of our property law solicitors as soon as possible. We are able to advise you and provide you with the necessary lawyer’s certificate if you choose to waive your cooling-off rights. Either way, you should make an informed decision as to how to proceed.

Selling
Q4. I have sold my house and it looks like the purchaser will not be able to settle on the agreed settlement date. What should I do?

A. You should seek advice from one of our property lawyers as to what rights and / or entitlements you have under the contract and what the best option is in your circumstances. There will often be a number of legal as well as practical matters to consider if, for example, you may wish to terminate the contract.

Property settlement
Q5. I have recently separated from my spouse and we have agreed that ownership of the matrimonial home will be transferred to me. What should be my next step?

A.In most cases it is desirable for separated couples to seek advice from a family lawyer with respect to the division of assets of the relationship. This is because any informal arrangements you enter into may be overturned if one of the separated parties chooses to take the matter to court.

Separated parties are often not fully aware of their rights and entitlements following a separation. They should therefore seek advice and formalise in writing any agreement reached for the division of assets.

Formal property settlement agreements can also avoid payment of stamp duty on your spouse’s share of the house, saving thousands of dollars. Scammell & Co. have family law solicitors who can help you.

Section 7 statement
Q6. What is a Section 7 Statement?

A.
A Section 7 Statement is a document from the Vendor to the Purchaser which provides the Purchaser with detail and information about the property which the purchaser proposing to buy. The Vendor is legally required to complete and serve the document on the Purchaser and can be sued by the Purchaser if the document is wrong or misleading. Further, if the contract has not settled it may be possible for it to be cancelled if the form is inaccurate. It is a document which must be treated with great care and caution.

Special conditions
Q7. What is a Special Condition?

A. In negotiating a contract either party may require certain Special Conditions to be included in the contract. For example, the Vendor may wish to stay in occupation of the property after settlement for a short time or the Purchaser may require a condition that the contract is subject to finance, a soil report or a building inspection. If you want Special Conditions to be included they must be incorporated into the contract of sale before you sign it.

Insurance
Q8. What is the insurance risk on sale of a property?

A. UUsually the risk of a property being destroyed by earthquake, fire etc. and any other damage moves to the Purchaser immediately upon signing the contract. The Purchaser therefore needs to obtain insurance on the same day. However, the Vendor should not allow the Vendor’s insurance to elapse until after settlement.

Stamp duty / registrations
Q9. What are Stamp Duty and registration fees?

A.On registering the transfer of a property at the Lands Titles Office, the State Government requires two payments, being:

  • Stamp duty.
  • Registration fees.

Both are charged on sliding scales which increase according to the value of the property. These payments are normally made by the Purchaser (but the government reserves the right to collect from both Vendor and Purchaser). As a rough guide you should allow 5% of the purchase price for these fees.

GST
Q10. Does Goods and Service Tax (GST) apply?

A. In most cases the Federal Government’s GST does not apply to residential property but does apply to commercial property.

Scammell & Co.’s solicitors can advise you whether GST applies to your transfer. It is usually 10% of the purchase price.

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Wills and Deceased Estates

Q1. Why should I make a Will?
A.In summary, to make sure that the people you want to receive your assets after you die do receive them. A Will helps ensure this happens and occurs with minimum legal costs and in a tax effective manner.

There can be significant consequences if no Will exists.

Q2. Why should I pay someone to make a will when I can make my own?
A. After you die the last Will that you make must be submitted to the Probate Court to check that it is a valid Will and complies with all of the rules regarding Wills. If any rule regarding Wills is not met, the Court will ask for extra information and documents to be lodged with the Court. This puts your estate to added legal expense and delays the administration of your estate. Each additional document could cost at least as much as it would have cost to have a standard Will prepared by someone who is knowledgeable and experienced in the administration of estates and the preparation of Wills.

Preparing your own Will with the help of a book or internet forms can be a costly mistake. If you don’t know and understand the rules regarding Wills and how they apply to your situation, any mistakes will not be discovered until after you die. This can include taxation implications. It is cheaper to ensure that your Will is correct before you die than it is to fix mistakes after you die.

Q3. Why should I consider estate planning?
A.Estate Planning is not ‘one size fits all’. Unless you are a solicitor or an experienced Wills and Estates Administrator, you have no way of knowing whether the document you have prepared is appropriate for your individual situation. A trained and experienced professional estate planner can envisage circumstances that you may not consider, can identify potential problems and fix them. He or she can dramatically improve the chances of your plan actually working as anticipated.

Scammell & Co. will look at each person’s individual circumstances and then advise on various estate-planning strategies that can be used to give your beneficiaries the ability to:
  • Minimise taxes on income earned from their inheritance.
  • Retain their inheritance for your descendants only.
  • Protect vulnerable or incapacitated beneficiary’s inheritance.
Q4. What is a grant of Probate?
A. A Grant of Probate is a Certificate from the Probate Court which:

  • Verifies that your Will is legally valid.
  • Certifies who the person is, who has the legal authority to deal with your assets, that is your Executor or Administrator.

One of the reasons for the formal Grant of Probate process is to prevent fraud. The process usually takes four to six weeks after the lodgement of the application for Probate at Court.

Q5. What is wrong with completing a will kit?
A.
Will Kits are designed to cover only the most basic circumstances and do not provide for variations in people’s circumstances. There is no personal attention or advice on the legal consequences of certain estate planning choices. They do not offer the opportunity for beneficiaries to minimise tax, or protect their inheritance against claims by others.

In most cases when Will Kit Wills are submitted to the Probate Court after a person’s death the Court requires additional documents. The cost of each of these documents is usually in excess of the cost of having a standard Will made by a law firm. The added cost and delays often cause the deceased’s family stress, which could have been avoided.

Q6. How does tax affect my estate?
A.
The way in which your Will is worded can affect the amount of tax that your beneficiaries pay through your estate. This includes Capital Gains Tax on disposal of assets, penalty rates of taxes for underage beneficiaries and also income tax.

Q7. How are minors taxed on their inheritances?
A.

Minors are taxed differently depending on whether their income is ‘excepted income’ or not. Generally, a minor’s income from a deceased estate is not excepted income and penalty tax rates apply. Penalty tax rates are very high, see below:

Amount of Minor's Income that is
Not Excepted Income
Penalty Tax rates without
Low Income Offset
0 - $416 Nil tax
$417 to $1,307 66% on amounts from $416 to $1,307
Over $1,307 45% of the total amount


Fortunately, you can structure your Will so that the minor beneficiaries avoid losing so much of their inheritance to tax. This is usually achieved by using a Testamentary Trust.

If a minor receives income from a Trust created in your Will they can receive $6,000 per year tax free

before paying reasonable concessional tax rates. Concessional Tax rates start at 15%.

Taxable income Tax on this income
0 - $18,200 Nil
$18,201 - $37,000 19c for each $1 over $18,200
$37,001 - $87,000 $3,572 plus 32.5c for each $1 over $37,000
$87,001 - $180,000 $19,822 plus 37c for each $1 over $87,000
Above $180,000 $54,232 plus 45c for each $1 over $180,000
Q8. What is a testamentary trust?
A. A Testamentary Trust is created by your Will, but only comes into effect upon your death. You decide on the rules and terms of the Trust which are set out in your Will. The Trust can be as flexible or as inflexible as you want the Trust to be.

Q9. What type of trusts are made in a will?
A.There are many different types of testamentary trusts and they are used for many different reasons, depending on your family’s individual circumstances.

Some include:

  • A disabled person’s trust.
  • A spendthrift person’s trust.
  • An income maintenance trust.
  • A capital protected trust.
  • A staggered time release trust.
  • A protective trust.
  • A beneficiary controlled trust.
  • A fixed life interest trust. A flexible life interest trust.
Q10. Why might it be better not to leave assets directly to a child or children of adult age?
A1.The answer is the example of Mrs Smith who was adamant that she wanted a simple Will that left the whole of her estate equally to her three adult children, James, Alison and Beth. After her death the results were not what Mrs Smith would have wanted.

James was divorced and had to provide maintenance for his two children from the first marriage. His second wife was a stay-at-home Mum who looked after their two young children.

James invested his inheritance and lost 45% of the income each year in tax. He used the remaining 55% of the income to pay maintenance for his two families. The maintenance was paid in ‘after tax’ dollars.

James would have preferred to be given the option to establish a Testamentary Trust with his inheritance so that he could distribute $60,000 of the income to his wife and children tax free and then pay only 15% tax on the remainder of the income.

James owned his own company and ran the risk of being sued personally through his line of work. If his inheritance was in a Testamentary Trust the assets may have been protected from claims if he was ever sued.

James died a few years after his mother and his widow, Josie, married Bob the Builder. When Josie died, Bob the Builder successfully contested Josie’s Will. The result is that Mrs Smith’s estate eventually ended up with Bob the Builder’s family, not Mrs Smith’s own grandchildren.

If James’ inheritance was in a Testamentary Trust then on his death his inheritance could have stayed in the Trust and when Josie died her new husband, Bob the Builder, would not have been able to make a claim. The inheritance would have gone directly to Mrs Smith’s grandchildren rather than to Josie’s new husband.

A2. Alison and her husband are divorced. During her marriage Alison had nothing to do with her husband’s business but she had signed a personal guarantee to the bank. The divorce did not discharge her from the bank guarantee, and she did not get advice from a family lawyer at the time of the divorce.Alison was relying on her inheritance from her mother to raise her two minor children. Alison’s former husband’s business was in financial difficulty and her ex-husband’s creditors received the whole of Alison’s share in her mother’s estate. None of the estate benefited Alison or her children. It could have been protected by a Testamentary Trust.

A3. Beth is unemployed and a compulsive gambler. A Protective Trust would have ensured that Beth’s inheritance would benefit her rather than being lost to the casino and poker machines.

Q11. is it more expensive to make my will using a solicitor, when compared with using a trustee company?
A. No, in fact the opposite is the case. A Trustee Company will prepare your Will for no charge or a minimal charge if you appoint it to be your Executor. After you die, the Trustee Company charges commission on the gross value of your estate (not the net value). For example if you own a house valued at $400,000 with a mortgage of $300,000 the commission charged by the Trustee Company is on the value of $400,000 and can be as much as 8% of the gross value.

Also your beneficiaries have no choice in the administration of your estate and if unhappy with the Trustee Company they cannot fire the Trustee Company and appoint another trustee company.

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Contested Wills and Estates

Q1. What happens if I am left out of the Will?
A. IIn many cases, if you are a spouse, child or grandchild of a deceased person, or if you are in a relationship of dependency upon the deceased person, you may well have a claim for a provision from the estate of the deceased person, even if you have been left out of that deceased person’s Will.

In most cases, the estate would also pay all of your legal costs for incurred in challenging a Will.

Even if you have been included in the Will in a small way, you may have a claim for an increased amount.

Q2. What is my risk in taking action to contest a Will … what costs might I incur?
A. By coming into Scammell & Co. to discuss possible action, the first half hour of your first meeting is free.

If it is decided to contest the Will, it is usual for the estate to pay the legal costs of each contesting party. This means the estate loses, not you. This is not automatic but is usual.
Q3. Is there a time limit for me to contest a Will?
A. The law specifies six months, from the date of Probate. However, it is sometimes possible to get an extension of time.

If possible, claims should be initiated before the Grant of Probate.

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Advanced Care Directive

Q1. What is an Advance Directive?

An Advance Directive is a legally binding document that expresses a person’s wishes or directions in advance in the event that mental capacity is lost in the future. Only people over 18 years of age can make Advance Directives.

For an Advance Directive to be legally valid, the person making it must have the mental capacity to understand its nature and effect and the consequences of completing and signing the document. This must be done without any coercion, pressure, or influence by others.

Q2. Why should I make an Advance Directive?
A. p>An illness or accident can throw our lives and the lives of our loved ones into disarray.

Making an Advance Directive is a way of planning ahead and ensuring that your wishes are followed and that someone, who you know and trust, can legally look after your financial, health and personal affairs, if you are ever unable to do so.

Q3. What happens when there are no Advance Directives?
A.If you lose your capacity to make decisions and have not made an Advance Directive then no one has the legal authority to manage your affairs and make decisions for you.

The Guardianship Board can decide who will make your medical, personal and social decisions and decide where you live. Sometimes the Public Advocate is appointed as your Legal Guardian instead of a family member.

Your family will not be able to make your financial or legal decisions. An application to the Guardianship Board for an Administration Order will be necessary. The Public Trustee may be appointed as your Administrator to manage your assets, and financial and legal matters. This includes assets that you own jointly.

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Power of Attorney and Advance Care Directives

Q1. What power is given by an Enduring Power of Attorney?
A.It gives the person, or people you choose, the power to manage your money, your assets, your finances and your legal affairs. The appointed Attorney can, for example, deal with Centrelink, lodge your tax returns, operate your bank accounts, pay your bills, sell your house, invest your money and use your money for your benefit.

The document can be made so that it only comes into effect if you ever become unable to manage your affairs, or it can commence immediately and endure if you lose mental capacity. An Attorney, with the Power of Attorney document, cannot decide where you live or make decisions regarding your welfare or medical treatment.

Q2. Why make an Enduring Power of Attorney?
A. Unexpected sickness or an accident can render a person unable to make decisions in either the short term or long term. This can cause major difficulties for families if you have not prepared an Enduring Power of Attorney.

Q3. What is a Medical Power of Attorney?
A.
This document allows the appointment of someone to make decisions about your medical care and treatment. You can only appoint one person. A Medical Power of Attorney cannot make any lifestyle or financial decisions and cannot decide where you can live.

Q4. What is an Enduring Power of Guardianship?
A.
This document gives the person of your choice the legal authority to make your lifestyle and medical treatment decisions. It also allows you to record your personal wishes in relation to lifestyle decisions and medical treatment if you ever become unable to make decisions on these matters.

Q5. Why make an Enduring Power of Guardianship?

A. In some cases family members can make lifestyle and medical decisions for you informally. However, some decisions cannot be made informally. Without a Power of Guardianship an application must be made to the Guardianship Board for a Guardianship Order.

A Power of Guardianship gives a person, or people you choose, the authority to decide where you live and to make your personal, social and welfare decisions if ever you are unable to.

A Guardian also makes decisions about medical care and treatment if you do not have a Medical Power of Attorney. In the document you can give your Guardian specific conditions, directions and requests to follow when making decisions on your behalf.

Q6. What is an Anticipatory Direction?
A. This document provides a way of legally recording a person's wishes and directions about end of life decisions and will only apply if you are in the final stage of a terminal illness or in a persistent vegetative state.

It does not appoint another person to make your decisions.
Q7. Why make an Anticipatory Direction?
A. An Anticipatory Direction allows you to stipulate the kind of medical treatment you want, or do not want, if you are ever unable to make or convey your wishes. The Direction must be followed by those responsible for your medical care. It can be used as a stand-alone document or accompany the Medical Power of Attorney or Enduring Power of Guardianship.

Q8. Are all Powers of Attorney enduring?
A.No. There may be a time when it is necessary to appoint someone to manage your financial affairs while you still have the capacity to appoint that person. This may be due to an immediate short-term need, such as an extended overseas trip. A Power of Attorney that is not an Enduring Power of Attorney appoints someone you trust to manage your financial and legal affairs for a limited time or for a special condition.

You can make a Power of Attorney that comes into effect immediately and that will also endure if you lose capacity.

Q9. What is an Advance Directive?
A.An Advance Directive is a legally binding document that expresses a person’s wishes or directions in advance in the event that mental capacity is lost in the future. Only people over 18 years of age can make Advance Directives.

For an Advance Directive to be legally valid, the person making it must have the mental capacity to understand its nature and effect and the consequences of completing and signing the document. This must be done without any coercion, pressure, or influence by others.

Q10. Why should I make an Advance Directive?
A.An illness or accident can throw our lives and the lives of our loved ones into disarray.

Making an Advance Directive is a way of planning ahead and ensuring that your wishes are followed and that someone, who you know and trust, can legally look after your financial, health and personal affairs, if you are ever unable to do so.

Q11. What happens when there are no Advance Directives?
A.If you lose your capacity to make decisions and have not made an Advance Directive then no one has the legal authority to manage your affairs and make decisions for you.

The Guardianship Board can decide who will make your medical, personal and social decisions and decide where you live. Sometimes the Public Advocate is appointed as your Legal Guardian instead of a family member.

Your family will not be able to make your financial or legal decisions. An application to the Guardianship Board for an Administration Order will be necessary. The Public Trustee may be appointed as your Administrator to manage your assets, and financial and legal matters. This includes assets that you own jointly.

Print FAQ

Police and Criminal Matters

Q1. What should I bring to an appointment?
A. Any documents received from the Police i.e. Summons, Complaint, Bail Forms, Property Receipt or other Police documentation.
 
Q2. Can I avoid a conviction on my record?
A. When a Court hands down a penalty, a conviction for that offence will generally be recorded against your name. Convictions can sometimes affect your future employment, your ability to travel overseas and / or your ability to get certain licences to drive motor vehicles.

In certain circumstances, a Court can deal with your matter without recording a conviction if there is a good reason. Getting early advice on this issue is extremely important if an application is to be made.

Q3. What are my rights when being questioned by Police?
A.It is important that you remain cooperative and polite with Police but we recommend that you exercise your right to remain silent until you have received legal advice. There are some questions that you are required by law to answer otherwise you will be charged with further offences. The information that you must provide to Police is:
  • Your full name.
  • Your address.

If the Police inquiry relates to your registered motor vehicle then it will be necessary for you to provide the name of the person that was driving your motor vehicle at the date and time nominated by Police.

To other questions simply reply, “I exercise my right to remain silent until I receive legal advice” – or simply say “I don’t wish to answer”.

Ring Scammell & Co. on 8447 4466 or 8212 6875 (or after hours on 0412 975 081) as soon as the Police give you an opportunity to call a solicitor. We will provide you with further advice over the telephone and can even negotiate with the Police to get bail for you.

Q4. What will Scammell & Co achieve for me?
A. We can provide a fearless and comprehensive defence to any charges laid against you. Where you concede to a charge we will work to persuade the Prosecution and the Court that a low penalty should be imposed. We provide realistic advice.

Q5. What if I need urgent advice?
A. One of our solicitors is always available to take your call after hours on 0412 975 081.

Q5. I have received an expiation notice and want to challenge it. What should I do? If I pay the fine, will I lose my licence?
A. Do not pay the fine until you have discussed your options with one of our solicitors. There is a section on the notice that you can complete entitled ‘Election to be Prosecuted’. Complete that form in a timely fashion and arrange an appointment with one of our solicitors. We can discuss with you whether you have a defence to the charge, and help you make an application for a reduction in demerit points if appropriate.

Q6. If I succeed in defending my police matter, either by winning at trial or by the police withdrawing the charges against me (“dropping the charges”), can I recover any of my legal fees?
A. It is possible in the Magistrates Court and Youth Court (for summary matters), but not in the District or Supreme Courts, to make an application for costs at the conclusion of the matter. Costs are ordinarily applied for on a court scale rate and are unlikely to cover your full legal costs. Occasionally, and in specific circumstances, your solicitor can apply for what is known as indemnity costs, which provides for more of your costs to be covered. We will advise you if this is possible in your circumstances.

Q7. I have just had my first court appearance and the matter has been adjourned (put off to another date). Am I still on Bail?
A. The short answer is usually “Yes”, unless the Court formally withdraws your bail agreement. Assuming you have been arrested (not summonsed to court) you may have entered into a police bail agreement. Once you go to court and adjourn the matter, most Magistrates will say that Bail is to continue, which means you are placed on court bail for the duration of your court case.

If you are on bail, it is very important that you follow all of your bail conditions including attending every court hearing in your matter. Breaching your bail conditions is a criminal offence punishable by imprisonment. If you wish to have anything altered on the bail agreement – for example, you want to move house and change your bail address – you will need a solicitor to make a formal application to the court to vary your bail. We can explain your bail conditions to you.

Q8. I have recently been arrested and placed on police bail to appear in court at a later date. I need to get my bail conditions varied to travel interstate for work. What should I do?
A. Prior to your first court date the police (not the court) have control over your bail and bail conditions. To change your conditions or to seek permission to leave the state you will need to go to the nearest police station, speak to the bail sergeant and make that request to vary your bail conditions. We are able to assist you in conducting these negotiations with the police. If the police will not alter your bail, you will need to wait until your first court hearing before you can apply to the court to vary your bail.

Q9. Mouth swab / DNA tests – should I agree?
A. You should speak to a solicitor before agreeing to either of these procedures.

Q10. I understand that the police may have CCTV footage of my alleged offending. Can my solicitor view this footage?
A. You are entitled to see the evidence that makes up the case against you. Your solicitor will obtain any CCTV footage from the police prosecution unit should this be in their possession. However, this may not be available until your matter has been before the court for some time. Sometimes, we may be able to attend at hotel, shop or other locations where the CCTV footage is held and independently view the CCTV footage. If you believe there is CCTV footage which may shed light on your case, you should inform your solicitor and discuss the possibility of obtaining the footage.

Q11. I have been charged and asked if I would like to provide a statement. Should I do this?
A. The safest option is usually not give a statement to police. Providing a statement is unlikely to help your case, even if you think that you can “explain everything”, and even if you believe that you are guilty of the offence and just want to “give a confession”. Do not feel pressured to provide a statement – remaining silent cannot be held against you in court. Sometimes your statement is the strongest evidence that the police have against you. Providing a statement to police may affect our ability to persuade police to drop their charges.

We are able to obtain statements, notes, CCTV footage, forensic test results and other evidence from prosecution in relation to your matter. It is important we review that material prior to obtaining your final instructions.

Q12. Should I involve the media in my case?
A. It is almost always not advisable to involve the media in your matter. Although this is always your decision, we ask you to bear in mind that your statement and the media’s interpretation of it may impact negatively on our ability to successfully negotiate with Prosecution regarding your matter. Further, your statements to the media can be used as evidence at any trial that may take place in your matter. Finally, the media will not always report things in the way that you want them to report. For all of these reasons, giving a statement to the media could have a negative impact on the outcome of your matter.

Q13. I have a trial at the Magistrates Court, will there be a jury?
A. You do not have the option of a jury trial in the Magistrates Court. A Magistrate will hear the trial and decide whether you are guilty or not guilty of the offence(s). However, if you are charged with a minor indictable offence such as assault or manufacturing a controlled drug, you can elect to have a trial by jury, in which case your matter will be transferred to the District Court.

Q14. I would like a suppression order because I am worried about the embarrassment that my case will cause my family. What should I do?
A. It is very difficult to secure a suppression order. The chances are that any suppression application will be refused by the Court. Embarrassment to yourself or to your family is not a sufficient ground for the Court to order the suppression of your name. It is also very important to bear in mind that if you make an application for a suppression order, you may well attract attention from the media. However, in some cases it may be possible to make a successful application for a suppression order. Our experienced criminal lawyers can advise you on whether you have the grounds to make a successful application for a suspension order.

Q15. My son is 16 years old and has been charged. What are the penalties available for youth offenders?
A.There are many different penalty options for youth offenders. Often youths in criminal matters are ordered to attend a Family Conference. This will involve the youth’s family, the police and possibly the victim(s) of the offence(s) who meet to discuss what penalty, should be imposed. Officially all that will be recorded on your son’s record would be Family Conference. There are other options such as a formal caution, or “without conviction” that we can discuss with you. In more serious matters an obligation to be of good behaviour or a period of detention is possible – even though your child is under the age of 18 years.

The final decision on penalty is up to the Magistrate. However, if your solicitor has negotiated with Prosecution regarding the desired outcome, any agreement can be helpful in persuading the Magistrate as to what should be imposed as a penalty. Therefore, we suggest that you obtain advice from one of our solicitors at the earliest possible opportunity.

Other Offences where Scammell & Co. can assist with your defence:

  • Drug Offences.
  • Sexual Assault.
  • Social Security / Taxation matters.
  • Property Damage.

Print FAQ

Traffic Offences

Q1. Can I avoid Speed Cameras / Traffic Light fines?
A. If you want to defend or appeal against a fine for a traffic offence or to avoid loss of demerit points you MUST NOT PAY THE FINE and you should seek urgent legal advice. Defending a speed camera or traffic light camera fine generally requires you to show that the Police equipment may be inaccurate.

We may still be able to help you avoid demerit points even if you cannot dispute the fine.

Q2. Can I reduce Demerit Points?
A. If you accumulate 12 or more demerit points in any three year period, you will be disqualified from driving (based on the offence date).

If you were not the driver of the vehicle when the offence occurred you should complete the Statutory Declaration provided with the fine notice. The fine and demerit points will then generally be transferred to the actual driver.

Demerit points are allocated to a range of traffic offences against the Road Traffic Act SA and the Australian Road Rules.

A “good behaviour” bond option is first available when 12 demerit points are reached but if you breach this bond your licence will be disqualified for twice the original disqualification period.

In some cases you can apply to have the number of demerit points reduced by the

Q3. What happens if I am caught Driving whilst Disqualified or Suspended?
A. The maximum penalty for driving whilst suspended due to loss of demerit points or disqualified pursuant to a Court order, is imprisonment. A first offence can carry with it a maximum penalty of six months imprisonment.

In some circumstances it is possible to submit to a Court that a person should not be imprisoned and that there are good reasons to suspend any term of imprisonment.
Q4. What if I am charged with Drink Driving?
A. If you are found to be driving a motor vehicle with an excessive amount of alcohol in your blood (over .05) you will be charged with an offence.

The law now allows the Police to immediately disqualify you from driving where you are suspected of committing a drink driving offence. (This can also occur if you are charged with “Refuse to Submit to an Alco or Breath Test”).

In some circumstances it is possible to make an application to the Court to revoke any immediate disqualification imposed by the Police pending the resolution of the matter.

If sentenced for these offences, you are likely to incur a fine and licence disqualification. In some circumstances you can also be imprisoned. We can help you to explain to the Court why you were driving in this manner and why you should receive a minimal fine and the shortest possible licence disqualification period.

Q5. I have just lost my licence for drink driving. Can I get permission to drive for work purposes only?
A. If you are disqualified by either the police or a court, there is no option to apply for any conditional licence or exemption to the disqualification for the purposes of driving to and from work, or for any other purpose.

Print FAQ

Contact Us


Port Adelaide
235 St Vincent Street,
Port Adelaide
South Australia 5015

(08) 8314 7575
8.30am-5.00pm
Mon-Fri

Adelaide
86 Franklin Street,
Adelaide
South Australia 5000

(08) 8314 7588
8.30am-5.00pm
Mon-Fri

Walkerville
95A Walkerville Tce,
Walkerville
South Australia 5081

(08) 8342 0300
8.30am-5.00pm
Mon-Fri

Gawler
8 Union Street,
Gawler
South Australia 5118

(08) 8522 7160
8.30am-5.00pm
Mon-Fri

Renmark
9 Murtho Street,
Renmark
South Australia 5341

By appointment
(08) 8586 6764

Tanunda
By appointment
(08) 8314 7588

After hours - 0412 975 081 - Evenings, Weekends, Public Holidays

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