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  • Mid Range PCA, Drink Driving Lawyers, Brisbane DUI Solicitors, Beenleigh Ipswich
    The new offences catches a person with a blood alcohol content BAC of between 0 1 and below 0 15 The impact of the new legislation means that the police now can immediately suspend the licences of anyone with such a reading Before that time only people with readings of 0 15 and above were automatically and immediately disqualified until their matter was heard in court Before the 1st of July if your BAC reading was below 0 15 then you only received a 24 hour suspension and could keep driving until the offence was finalised in court Anything over 15 is considered a high range drink driving charge and still carries an immediate suspension of a person s driver s licence The new laws puts the mid range drink driving levels in line with the levels considered in the high range category The drink driving laws have been further toughened following feedback on the drink driving discussion paper last year The government has said that holding a driver license is a privilege and they introduced these laws to keep drink drivers off our roads DUI Traffic and Licence Offences The minimum disqualification The dedicated team of solicitors and lawyers based in Brisbane and servicing all South East Queensland courts from Coolangatta and Southport to Ipswich Beenleigh and Beaudesert Brisbane and Roma Street and all suburban courts up to Caboolture Caloundra Maroochydore and Noosa We have helped thousands of drivers for traffic offences relating to drink driving DUI disqualified driving unlicenced driving dangerous driving hooning work licences special hardship orders If you have a driving offence or licence related matter we have the expertise and experience to get you the best possible result Call Aitken Whyte Lawyers for solutions and results for expert and experienced advice to represent you at

    Original URL path: http://www.awbrisbanelawyers.com.au/a1102-mid-range-pca-drink-driving-laws-dui-lawyers-solicitors-brisbane-beenleigh-ipswich-articles-law.html (2015-11-27)
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  • Costs in Family Provision Claims, Lawyers, Brisbane, Solicitors
    is often difficult for legal practitioners to provide accurate advice in relation to the awarding costs in family provision claims In making their decision the court will take into consideration a number of issues to gauge the overall justice of the outcome These considerations may include the financial effect that a particular costs order may have on the party the reasonableness of the claim and the conduct of the parties An example of the court taking into consideration the conduct of the parties was in Yeomans v Yeomans 2011 QSC 344 in this case the applicant was the long term de facto partner of the deceased The applicant was successful in being awarded a provision of 50 000 however despite being successful in the claim the court took into consideration the conduct of the applicant and held that the applicant had made an unreasonable settlement offer that was not advantageous towards reaching a settlement Further to this the applicant had not been forthcoming in disclosing a prior payment Unreasonable conduct of the parties was stated in Underwood v Underwood 2009 QSC 107 to diminish the value of the estate It was held that due to the unreasonable conduct of the applicant costs were only to be awarded for the applicant on the standard basis not on an indemnity basis In contrast where there is an unsuccessful claim the Full Court of South Australia stated in Bower v Wood 2007 SASC 327 that the general principle that applies is that no costs order will be made The Court s discretion remains however and may still order costs based upon the reasonableness of the application being that costs may be awarded in favour of the applicant for a reasonable application or for an unreasonable with little prospects of success the applicant may

    Original URL path: http://www.awbrisbanelawyers.com.au/costs_family_provision-claims-lawyers-solicitors-brisbane.html (2015-11-27)
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  • Family Provision Claims, Challenging Wills, Wills Disputes, Estate Disputes, Solicitors, Brisbane
    and support The appropriate provision is always considered in respect to the role the testator played in the life of their respective spouse child or dependant and the provisions made during the life of the testator In an older case of McCosker v McCosker the deceased had five sons and two daughters There were no negative relationships between the deceased and any of his children In his will the testator made provision for two of his sons and made no provision for any of his other children as by his reasons in his will he had already provided for them adequately in his lifetime There was no challenge by four of the children who were not included as beneficiaries as two of the sons had been established as successful graziers thanks to financial assistance from their father and the two daughters were married with husbands who could support them note that this case was heard in the 50 s and the same gender stereotyping would be less likely to preclude a provision application today During his lifetime the deceased had provided the applicant with employment working on his property for many years and had also provided loans to assist the applicant to purchase property and animals for breeding and production This was put forward as the justification by the deceased for having not further provided for him under the will At first instance the court determined that adequate provision had not been made for the applicant son as his property was not yet in a state to be producing sufficient income and it was known to his father at the time of drafting his will that further funding would be necessary It was also found that it was known to the deceased that the applicant s wife was unwell and her car and medical expenses had greatly impacted the applicant s ability to maintain and develop the property to a state where it could generate a decent income Accordingly the applicant was awarded a significant sum out of the estate which impacted the sum then received by the other two brothers On appeal by the two sons for whom provision had been made the court determined that the original decision to amend the will was correct as adequate provision had not been made for the applicant however the amount awarded was not correct On examination of the sum awarded the court noted that even if provision was made to cover the whole of the applicant s debts as well as to cover payment for new equipment and birds it would still be a smaller sum than what was awarded in the first instance Accordingly the appeal was allowed and the court reduced the amount awarded to more accurately reflect what would actually be required to fulfil the deceased s moral duty to provide for his son which was a reduction to almost half of what was originally awarded While this case is an older case it exemplifies an attitude still

    Original URL path: http://www.awbrisbanelawyers.com.au/challenging-wills-estate-disputes-family-provison-claims-solicitors-brisbane.html (2015-11-27)
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  • Challenging Wills, Contesting Wills, Family Provision, Succession Act, Sham Marriage, Estranged Children and Dementia, Solicitors, Brisbane
    Mr Manly and his sons by their inclusion in each of his succeeding Wills over the next 15 years Sham Marriage The Applicant and deceased married in 2001 at the respective ages of 47 and 79 after meeting in the Philippines Prior to the marriage and the Applicant s subsequent move to Australia she had been on contract as a Nurse in Saudi Arabia and had no knowledge of the existence of Mr Manly s children The wedding was held at the Southport Magistrates Court with the only people in attendance being one of the deceased s sons with his wife and children There was evidence given to support claims by the sons that none of them had been aware of the wedding plans and that the attendance by one son had simply been due to a visit to his father coinciding with the wedding about which his father had simply said he had a wedding to attend without specifying that it was his own wedding The court concluded that the marriage was the result of an agreement between the applicant and the deceased whereby she would utilise her skills as a trained nurse to care for him while his health was diminishing and in return he would marry her entitling her to reside in Australia and receive his Veteran s pension Interestingly this was not held to be a sham but rather a marriage of convenience to both sides Additional Considerations The finding that the marriage was merely a mutually beneficial agreement led the Judge to state that the credibility of the Applicant was very questionable given her claim that her move from the Philippines was due to the love between her and the deceased which was clearly not true It was therefore stated that it could not be believed that the Applicant had any real expectation of receiving benefits above and beyond the right to residency the Veteran s pension and perhaps a quarter share of the estate which at the time of her moving was significantly more modest Health Concerns The applicant argued that she was entitled to further provision due to the extensive care she provided to the deceased particularly as he developed dementia and became irritable and aggressive towards her while being so dependent on her that she was unable to leave the house for weeks at a time The Judge held that this was supported by the evidence The applicant also claimed to be suffering from various health issues which would prevent her ability to earn an income in the future The Judge was not satisfied by the evidence that this was the case She also received the Veteran s Widow pension which covered her outgoing expenses and allowed free medical care One of the deceased s sons had a viral infection from which he would never fully recover as well as the need for a hip replacement costing 15 000 Another of the deceased s sons had been retrenched from his job due

    Original URL path: http://www.awbrisbanelawyers.com.au/challenging-wills-family-provison-claims-succession-act-dementia-sham-marriage-solicitors-brisbane.html (2015-11-27)
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  • Family Provision Orders - Settlement Agreements, Contesting Wills, Brisbane Solicitors
    recent 2011 case Begulic v The Public Trustee the husband of the deceased sought a family provision order under s 41 of the Succession Act after the entire estate of the deceased was granted to her nephew under her Will The parties reached agreement outside of court proceedings however still required the court to make an order to give effect to the agreement The focus of this case was on the weight the court should give to agreements reached between the parties when determining the orders that should be made The court noted that the process of obtaining a family provision order involved two stages The court must determine whether the applicant has been left without adequate provision for his or her proper maintenance education and advancement in life If adequate provision has not be made the court must determine what provision ought to be made out of the deceased s estate It was determined that generally courts should make orders in accordance with the terms of the settlement reached between the parties except in cases where the plaintiff appears to have no need of provision The applicant in this case gave evidence that he had been married to the deceased for 43 years without children and they had separated in 1990 but resumed cohabitation 13 years later and until her death He had worked his whole life and had only ceased employment in order to provide care for his wife after she had a stroke He had applied his superannuation to the mortgage on a property held by him and his wife as tenants in common He also suffered from stress had very few assets and was 70 years of age The court concluded that it was clear on the facts that adequate provision had not been made for

    Original URL path: http://www.awbrisbanelawyers.com.au/family-provision-orders-settlement-agreements-contesting-wills-brisbane-solicitors.html (2015-11-27)
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  • Informal Wills Qld, Contesting Wills, Suing Solicitors, Negligence
    before she was able to meet with Mr Howe again and execute her new will This meant that the terms of Mrs Fischer s 2009 will were to be carried out and that Mrs Fischer s son would only receive a 25 per cent share of the estate as opposed to Mrs Fischer s intention for him to receive a 50 per cent share under her new will Subsequently Mrs Fischer s son brought a claim for professional negligence against Mr Howe seeking damages on the grounds that Mr Howe breached his duty of care to Mr Fischer as an intended beneficiary under the new will Mr Fischer claimed that Mr Howe had breached this duty by failing to have Mrs Fischer sign an informal will Judgment At first instance in the New South Wales Supreme Court Adamson J held that Mr Howe owed a duty to Mrs Fischer to draft an informal will Additionally Mr Howe also owed a duty of care to Mr Fischer as an intended beneficiary The Court concluded that Mr Howe had been negligent in failing to have Mrs Fischer sign an informal Will at their first meeting upon taking her instructions and subsequently awarded damages to Mr Fischer On appeal to the New South Wales Court of Appeal however the Court overturned this decision finding that although Mr Howe owed Mr Fischer a duty of care as an intended beneficiary this duty had not been breached The Court held that the scope of Mr Howe s duty of care to Mr Fischer was to be determined by Mr Howe s retainer which was to take reasonable care to prepare and execute a formal will for Mrs Fischer Therefore any breach of this retainer by failing to take reasonable care would also constitute a breach of Mr Howe s duty to Mr Fischer In determining whether Mr Howe had breached his duty owed under the retainer and whether an informal will was require the Court considered there to be two reasonable steps that should be taken to achieve the duty under the retainer Firstly the solicitor must fulfil the obligation to make a formal will in the timeframe agreed upon between the parties Secondly the solicitor must take steps to avoid any reasonably foreseeable frustration that may arise in carrying out the making of a formal will In considering whether Mr Howe had fulfilled his obligation to prepare a formal will within the agreed timeframe the court first considered the express terms of the agreement The court heard evidence that between 1982 and 2009 Mrs Fischer had made at least nine formal wills On each of these occasions Mrs Fischer would provide the solicitor with her instructions and the solicitor would later draft the will and provide her with a draft and once finalised would have the will signed and attested The court concluded that Mrs Fischer was familiar with the process and that she had intended on following this same course in relation to

    Original URL path: http://www.awbrisbanelawyers.com.au/informal-will-qld-contesting-wills-solicitors-negligence-brisbane-lawyers.html (2015-11-27)
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  • Affect Of Recent High Court Decision On All Trusts In Australia, Business, Law Articles, Brisbane Lawyers
    in Australia In particular they affect how trust deeds and income distribution resolutions must be drafted to obtain the optimum tax outcome You should be talking to your accountant to ensure you are actually optimizing your tax situation and consider a review of your trust deed s to see if any changes are needed or whether they are possible The decision confirms that it is possible to define and modify what is meant by trust income through drafting of the deeds which creates some circumstances removing adverse tax consequences or allow even more beneficial tax consequences to be achieved There are still caveats on such drafting application of anti avoidance rules or trust stripping rules in circumstances involving a deliberate mismatch between income entitlements and tax outcomes There needs to be significant care taken in drafting yearly income distribution resolutions and to ensure that the trust deed confers sufficient powers to allow a trustee to determine trust income in each income year As such all trustees in the 09 10 income year and onwards should take the following steps review the trust deed in conjunction with their tax and legal advisors to ensure it defines trust income and if so does it allow minimization of adverse tax consequences Consideration also needs to be given to whether it allows modification of trust income and to be able to reclassify income or capital and allocate expenses and losses Are there sufficient streaming provisions Consider amending the trust deed if possible taking into account trust resettlement problems Review distribution resolutions for favourable tax outcomes to be achieved Call Aitken Whyte Lawyers for solutions and results for expert and experienced advice to represent you at this important time or if you want to learn more about Business and Commercial Law in Queensland For Brisbane

    Original URL path: http://www.awbrisbanelawyers.com.au/a1006-high-court-decision-trusts-in-australia-business-commercial-articles-law.html (2015-11-27)
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  • Proposed amendments to taxation of employee equity schemes, Law Articles, Brisbane Lawyers, Law Firms
    outcomes of this amendment may be the reduction in use of salary sacrifice schemes Implications for CGT the Bills have substantially amended the CGT provisions so that only in limited circumstances CGT may apply to trustees of employee share trusts when allocating and transferring the ESS interests The Bills contain a number of long awaited clarifications and useful changes to the Exposure Draft Legislation 75 non discriminatory requirement may now be more easily satisfied as ithas been amended to provide that in order to obtain deferred taxation for shares or concessional upfront taxation generally the employee equity scheme must have been offered to at least 75 of the permanent employees of the employer who have completed at least 3 years of service with the employer Takeovers and restructures have been amended to clarify that the three year minimum holding period which is required to be satisfied in order to apply the concessional upfront taxation rules the 1 000 exemption will be taken to be satisfied where shares are acquired under a takeover or restructure TFN declaration given by an employee to an employer would now authorise the employer to inform the provider of the ESS interest of the employee s TFN Other useful clarifications confirmations an employee equity scheme only exists where shares or rights are provided in relation to an employee s employment the 30 day rule may be ignored in determining the point at which the reporting obligation arises for ESS interests on which tax is deferred and the deferral of a tax deduction for the funding of an employee equity scheme is subject to provision of the relevant funding before the acquisition of shares in question A number of important issues in respect of the new regime still remain unclear The Bills do not clarify what circumstances

    Original URL path: http://www.awbrisbanelawyers.com.au/a0409-proposed-amendments-taxation-of-employee-equity-schemes-articles-law.html (2015-11-27)
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