Recent and significant changes to family provision laws in Victoria have been made and apply to the estates of persons deceased on or after 1 January 2015.

A family provision claim is essentially a challenge to a deceased person’s will. The basis for the claim is that, having regard to the relationship between the deceased person and the claimant (and other factors not discussed in this memorandum), the deceased person should have made provision or further provision for the claimant’s proper maintenance and support.

The new law acts to reduce the categories of those eligible to make a family provision claim.

The Administration and Probate Act 1958 (Vic) now restricts eligibility to:

1. a person who was the spouse or domestic partner of the deceased at the time of the deceased’s death;
2. a child of the deceased, including a child adopted by the deceased who, at the time of the deceased’s death, was:
   • under the age of 18 years; or
   • a full-time student aged between 18 years and 25 years; or
   • a child with a disability;
3. a stepchild of the deceased who, at the time of the deceased’s death, was:
   • under the age of 18 years; or
   • a full-time student aged between 18 years and 25 years; or
   • a stepchild with a disability;
4. a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated by the deceased as a natural child of the deceased who, at the time of the deceased’s death, was—
   • under the age of 18 years; or
   • a full-time student aged between 18 years and 25 years; or
   •  a child with a disability;
5. a former spouse or former domestic partner of the deceased if the person, at the time of the deceased’s death:
   • would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and
   • has either:
     1. not taken those proceedings; or
     2. commenced but not finalised those proceedings; and
     3. is now prevented from taking or finalising those proceedings because of the death of the deceased;
6. a child or stepchild of the deceased not referred to in paragraph (b) or (c);
7. a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in paragraph (d);
8. a registered caring partner of the deceased;
9. a grandchild of the deceased;
10. a spouse or domestic partner of a child of the deceased (including a stepchild or a person referred to in paragraph (d) or (g)) if the child of the deceased dies within one year of the deceased’s death;
11. a person who, at the time of the deceased’s death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member.

It is important to note that eligibility to make a family provision claim does not, of itself, entitle a claimant to a family provision order. The Court must consider a range of other factors (not discussed herein) before making the Order.

Finally, there is a time restriction on making a family provision claim of 6 months from the grant of probate of the will or letters of administration, as the case may be, unless the Court considers it appropriate to extend time.

For further advice regarding family provision claims in Victoria (and New South Wales), do not hesitate to contact the experienced solicitors at Burt & Hanke Legal in Albury.

New South Wales has followed suit with Victoria in increasing sanctions imposed on its drink-drivers.

On and from 1 February 2015, serious and repeat drink-drivers in New South Wales face the imposition of alcohol interlock conditions on their licence following the usual period of licence disqualification.

An alcohol interlock device is a breath-testing device that prevents a motor vehicle from being started unless the driver of the vehicle returns a zero Blood Alcohol Concentration reading.

The period imposed for the interlock licence condition will vary depending upon the circumstances of the particular case, however, the absolute minimum period will be 12 months.

Unlike in Victoria, the Court will have a discretion to exempt a relevant drink-driver from the interlock licence condition, however, it can only do so “in exceptional circumstances.”

The cost to an offender of installing the device, having it serviced, maintained and removed can be quite onerous, estimated at $2,000.00 for a 12 month period.

The Roads and Maritime Services (RMS) will monitor those subject to alcohol interlock conditions by way of the data collected from the alcohol interlock device. Depending upon the drink-driver’s performance, at the expiry of the interlock period, the RMS may:

• Grant an unrestricted or provisional licence;
• Require a fitness to drive medical assessment; and
• Extend the interlock period.

For experienced legal advice on drink-driving or any other traffic or criminal matter, contact the solicitors at Burt & Hanke Legal in Albury.

The Home Building Act and Home Building Regulation in New South Wales are due for substantial change this year.

The changes will affect, quite obviously, anyone who is involved in or with the Home Building industry, including people building a new home or renovating an existing home.

The new laws commence on 15 January 2015, except for new provisions regarding home building contracts, which will commence on 1 March 2015.

It is intended the new laws and regulations will benefit all stakeholders by reducing red tape and promoting consumer protection and confidence.

The major changes affect licensing, owner-builders, the home warranty insurance scheme, defects, statutory warranties and home building contracts.

For more information in relation to the new home building laws, see the NSW Government Fair Trading website (www.fairtrading.nsw.gov.au) or contact the experienced solicitors at Burt & Hanke Legal in Albury.

For all offences committed in Victoria on or after 1 September 2014, a Magistrate or Judge no longer has the power to impose wholly or partially suspended sentences. In fact, in the County or Supreme Court in Victoria, a Judge cannot impose a suspended sentence for offences committed on or after 1 September 2013.

A suspended sentence is a term of imprisonment imposed on an offender that is not to be served immediately, or at all, subject to conditions. The offender is released into the community on the condition that they do not commit any further offence punishable by imprisonment during a specified period of time. If the offender breaches that condition, then, unless there are exceptional circumstances, he or she must serve the term of imprisonment (plus any additional sanction for the further offence).

The change in law has come about on the back of a perception that suspended sentences are a mere ‘slap on the wrist.’

It is the writer’s view, however, that suspended sentences have a place in the criminal justice system.

The utility of a suspended sentence is that it gives the offender one last chance to mend their ways. The suspended sentence hangs over the offender’s head for a period of time, hopefully encouraging the offender to make better choices and engage with appropriate support and rehabilitation services.

The unavailability of suspended sentences is likely to see those who would have previously qualified for a suspended sentence go directly to jail. This would include many offenders who have not previously served full time custody. The already overpopulated prison system will be put under more pressure. Further, and most importantly, offenders with prospects for rehabilitation will lose that last chance and serve time in jail where their prospects for rehabilitation are likely to be adversely affected.

Like all sentencing options currently available to our courts, there are circumstances where a suspended sentence is not appropriate. However, the converse is also true and now our Magistrates and Judges in Victoria do not have that option.

For experienced criminal law advice, contact the solicitors at Burt & Hanke Legal in Albury.

With the introduction of the Swimming Pools Amendment Act 2012, a number of changes have been made to the law surrounding properties with swimming pools and spas in New South Wales (NSW).

The purpose of the changes is to impose further obligations on owners of land with swimming pools to ensure standards for safety and security are adhered to.

There are two major changes that owners of property with swimming pools in NSW must be aware of.

The first of these changes is already in place and requires swimming pools and spas in NSW to be registered on a state-wide swimming pool register. Registration can be effected online (www.swimmingpoolregister.nsw.gov.au) or via the relevant local council. Failure to register a swimming pool or spa as required can result in fines of up to $2,200.00.

The second major change, which is due to commence on and from 29 April 2015, is the requirement for owners of properties with swimming pools in NSW to have a valid certificate of compliance for the pool prior to selling or leasing the property. If a vendor selling a property with a swimming pool fails to provide the purchaser with a valid certificate of compliance for the pool, the purchaser may be able to bring the contract to an end.

The process of obtaining a certificate of compliance involves an inspection of the swimming pool. If the inspection reveals that the pool does not comply with the law, then the owner of the property will be required, within a reasonable time, to undertake the works necessary to make the pool comply. Failure by the owner to undertake the requisite works may result in the Council undertaking the works, charging the owner the reasonable costs associated with the works and fining the owner up to $5,500.00.

For advice and assistance on all conveyancing and property matters in NSW and Victoria, contact the experienced Albury solicitors at Burt & Hanke Legal.