Gambling and waste in Property Settlements

When determining a property settlement between parties, after a separation, the Court can look at all the relevant facts of the matter to determine what is just and equitable.  Those facts can cover a myriad of situations one of which is wastage by a party to the marriage or relationship.  By wastage I mean one of the party’s actions has caused a financial loss to the matrimonial asset pool.  The court in one matter described waste as coming from a party’s reckless, negligent or wanton actions. (Kowaliw’s Case)  Examples of wastage could be gambling by one party, the sale of assets that existed at separation with the funds unreasonably expended, such as on overseas holidays or the giving away of assets of some value with claims they were of little or no value.

The question is if the asset or money no longer exists because of this waste, should the value by ‘notionally’, that is as if it still existed, added back into the asset pool.  This would allow the split to still take place on a fair basis with a subsequent reduction in the part to go to the responsible party to reflect the part wasted.  Essentially the notional asset or money, would go to that party.  This has been a fairly controversial area of Family Law in the past and remains so although it is widely held to be a genuine reason for adding back the value to the asset pool.  The issue usually is centred around whether it was wasteful or not.  Court authorities say if the expenditure was to meet reasonable incurred living expenses or necessary outgoings then there would be no need to add the monies back.

I have had many cases where a party is concerned about their partner’s reckless habits when it comes to things such as investments or bad or failed business ventures and the suggestion is that the prime decision maker should bear the loss.  The bad news here is the rule that came from a Full court judgement said “marriage is an economic partnership” and in the absence of proven waste, losses “should be shared equally”.  If you want to make sure your get your fair share of the asset pool, give us a call at Johnston Tobin Solicitors to discuss your situation.

Solicitor verses Public Trustee Fees

When it comes to having a Will prepared I have said many times it is wise to use the services of a solicitor.  The cost is usually a bargain compared to the peace of mind that comes from having a properly prepared Will.  I know there can be attractive alternatives to get a Will other ways, which might save you a few dollars and one is to use the Public Trustee’s free Will service.  Well, free provided you appoint them to be your Executor, in which case they will charge you for administering the Estate and obtaining a Grant of Probate, if that is required.

Probate is the application by an executor to the Supreme Court for approval to deal with the assets of the Estate.  While this may not be a welcome thought at such an emotional time, it is essential in many cases to allow collection of monies from bank accounts, sell assets and many other actions regarding the Estate.  There is a cost involved but exactly what those costs are depend a number of things, essentially related to how the estate is structured and the value of the assets.

Solicitor’s costs in obtaining Probate are regulated by the Legal Profession Act.  The schedule sets out a scale of fees, which can be charged by a solicitor for the work based on the value of the assets.  A basic application includes obtaining instructions, advice relating the estate, verifying details of assets, preparation of court documents, execution, filing, answering requisitions, perusal of grant and arrangements re distribution.  An example of the fees chargeable by solicitors are;

Asset value                 Allowable Fee (incl’s GST)

$150,000.00                $1,837.00        (or 1.22%)

$300,000.00                $2,100.00        (or 0.86%)

$500,000.00                $3,558.50        (or 0.71%)

$750,000.00                $4,787.20        (or 0.64%)

Compare this to the Public Trustees standard fees;

$150,000.00                $6,050.00        (or 4.05%)

$300,000.00                $9,900.00        (or 3.3%)

$500,000.00                $12,100.00      (or 2.42%)

$750,000.00                $13,200.00      (or 1.76%)


In both cases there can be additional costs for work done which does not fall into a standard first time application for Probate.  These are usually charged at an hourly rate, plus any disbursement costs.  Give me a call if you would like advice about your Will and Estate.

Dealing with a Deceased Estate

When someone passes away, after the grieving process, consideration needs to be given to what must be done in relation to the Estate.  That is, what to do with the deceased persons assets.  The first thing to do is to locate the Will.  Hopefully the deceased person will have made one, if not they are regarded as having died ‘intestate’ and dealing with the estate will be more difficult.

Hopefully the Will has been left with someone or placed somewhere for safe keeping and can be located easily.  Otherwise a thorough search of the house may be required.  At Johnston Tobin Solicitors we hold original Wills and other documents in safe custody free of charge for our clients.  Banks these days charge an annual fee for keeping documents.  A Will could be with a private trustee company or the Public Trustees Office.  I have acted for clients who believed no Will existed only to have one fall from an old book while cleaning out the house.

It is usually the appointed executor who should be making any arrangements.  If none is appointed the court will decide who administers the estate, which could be the next of kin or a beneficiary.  The question then is, is formal administration of the estate necessary.  Formal administration of an estate requires the executor to make an application to the Supreme Court for a grant of Probate.  Probate is an order of the court declaring the Will to be valid and allowing the estate to be administered, which may include the sale of any assets and distribution to beneficiaries.

If the deceased held all their property jointly with another person, the estate could pass directly to that person without formal administration.  It may only be necessary to produce copies of the Will and the death certificate to various bodies to change ownership of the various assets.  If a deceased person owns real estate there must be an application for Probate.  Funds held in bank accounts often won’t be released without Probate, unless only a small amount.

Getting legal advice early can help solve a lot of worries.  Give me a call if you would like to know more.