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How effective is my Will?

I am hearing about all these claims against estates – how effective is my Will?

Although claims against Estates get coverage in the media, most Estates are in fact completed on the basis of the wishes of the deceased in accordance with their Will.

It should be remembered the starting point at law is that a person is entitled to leave his or her estate to whoever they choose. A person has freedom to choose their beneficiaries – whether they be family members, other persons or their favourite charity.

Claims against estates under the “family provision” parts of succession law allow a limited group of people to seek provision out of an estate if they were left out or feel greater provision should have been made for them.

In simple terms, these “eligible persons” are spouses, de facto partners, children (including adult children) and grandchildren or members of the household who were dependent upon the deceased. But they must convince the Court why the claim should be entertained.
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The judge, jury and executioner: a Trustee’s capacity to adjudicate proofs of debt for legal fees

By Jodie Rodrigues, Solicitor at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group.

Pursuant to s 102 of the Bankruptcy Act 1966 (Cth), a trustee is required to “examine each proof of debt and the grounds of the debt sought to be proved”.

Legal costs can often be a problematic consideration, when questions of assessment, and the nature of the costs claim are taken into account. It is therefore important to have regard to the type of costs claims (for instance those of the bankrupt’s own solicitors, or adverse costs orders against the bankrupt). It is also relevant to consider at what stage in any costs assessment process the question of costs is being considered.

Case Study: Kent and Orlizki, in the matter of the Bankrupt Estate of Milovan Stankovic [2012] FCA 333

In this matter, the Bankrupt became bankrupt on 12 May 2009, but had lodged an application for extension of time to appeal from the sequestration order. This application was pending when in 2012 a hearing was held in regard to the proof of debt of the Bankrupt’s former solicitors. This highlights the often precarious and always difficult position of trustees in the face of appeals and applications for review of sequestration orders which might have the effect of entirely removing their authority to deal with the Bankrupt’s estate and affairs, sometimes years after their appointment (as in this case).
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Building defects in strata buildings and the legislative safeguards

Building Defects and Part 11 Protections for Strata Owners

We have previously written an article about the new duty of care protection in favour of property and strata owners, which is available under the new Design and Building Practitioners Act 2020 NSW (DBPA). Basically, it establishes a new duty of care against various building practitioners, retrospectively, covering losses arising from the last 10 years or so. However, that is not the only remedy available (of course). The issue of building defects have been around for a very long time and the legislation have been changing constantly, especially for strata buildings.

For example, the 2% developer bond and inspection scheme has been in operation since 1 January 2018 under Part 11 of the Strata Management Scheme Act 2015 (NSW). In fact, it was written into the 2015 Act when it first commenced. On 1 July 2020, there was another round of amendments to the scheme.
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Removal of Vehicles Illegally Parked on Strata Land

Removal of abandoned/uncollected goods and vehicles that are illegally parked on strata land

One of the problems with strata is that there is sometimes just “stuff” lying around in all the wrong places. For example, abandoned goods scattered across the scheme (especially when someone moved out) or even cars and trucks just parked everywhere out of convenience or they have been abandoned.

On and from 1 July 2020, abandoned and uncollected goods are no longer governed by strata legislation. The old section 125 of the Strata Management Scheme Act 2015 (NSW) and regulation 34 of the Strata Schemes Management Regulation 2016 (NSW) are now repealed with the issues now dealt with under the Uncollected Goods Act 1995 (NSW). NSW Fair Trading has some great information on this topic which can be accessed by clicking here. So, you would need to stop following the old processes about the sticking of disposal notices on items/cars and remove them when obstructing access (like driveways). And accordingly, most parking by-laws should be updated as they would be referring to the old car towing provisions, albeit the wheel clamping provisions under the Local Government Act 1993 (NSW) still remain.
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Common Problems with Common Property Rights By-Laws

Common problems with common property rights by-laws

Time and time again, we see some poorly drafted or “simple” by-laws. Sorry, we have to vent! Here is an example (below) – and no, it is not drafted by us:

  1. Special Privilege for Commercial Lot 1
  2. The owner of Commercial Lot 1 has the special privilege to carry out works on the lot without first obtaining the consent of the owners corporation to the alteration of the common property in connection with those works.
  3. The owner must give the corporation at least 7 days written notice of the intention to carry out works under this by law. The notice should give sufficient details of the works to be carried out to allow the owners to determine if the intended works are in compliance with this by law.
  4. Any works carried out under this by-law involving disruption to the access to the car space Lots to be carried out between 8:30 am-5:30 pm Monday-Friday only.
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New! Priority Migration Skilled Occupation List

New! Priority Migration Skilled Occupation List

A new Priority Migration Skilled Occupation List (PMSOL) was announced on 2  September 2020.


This list aims to support Australia’s economic recovery after COVID-19 based on advice from the National Skills Commission and consultation with relevant Commonwealth agencies, and comprises:

  • 111111: Chief Executive or Managing Director
  • 133111: Construction Project Manager
  • 233512: Mechanical Engineer
  • 253111: General Practitioner
  • 253112: Resident Medical Officer
  • 253411: Psychiatrist
  • 253999: Medical Practitioner nec
  • 254111: Midwife
  • 254412: Registered Nurse (Aged Care)
  • 254415: Registered Nurse (Critical Care and Emergency)
  • 254418: Registered Nurse (Medical)
  • 254422: Registered Nurse (Mental Health)
  • 254423: Registered Nurse (Perioperative)
  • 254499: Registered Nurses nec
  • 261312: Developer Programmer
  • 261313: Software Engineer
  • 312911: Maintenance Planner

The PMSOL will be reviewed and updated regularly depending upon its impact and changes in the economy.

Exemptions and Priority Cases

Offshore visa holders who have been sponsored by an Australian business in a PMSOL occupation can request an exemption from Australia’s travel restrictions but will be subject to a strict 14 day quarantine period on arrival at their own expense.
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Tougher Labour Market Testing and Nomination requirements due to COVID

New! Tougher Labour Market Testing and Nomination requirements due to COVID

The Australian Government has recently taken steps to protect job opportunities for Australians in response to the COVID-19 pandemic and fill gaps in critical sectors.

New Rules

As a result, current labour market testing requirements(LMT) have been enhanced to ensure that Australian workers are prioritised for job opportunities in Australia.

Specifically, a new legislative instrument has been introduced and requires any future nominated positions to be advertised on the Government’s Jobactive website.

This measure is in addition to the requirement for at least two advertisements in one or more mediums outlined in the existing policy.

Businesses that are considering employing overseas skilled workers on a Subclass 457 (Temporary Work (Skilled)) visa, Subclass 482 (Temporary Skill Shortage) visa, or Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa will have to abide by these requirements.

Key Date and Exceptions

The enhanced LMT requirements apply to nominations lodged on or after 1 October 2020. 

The amendment will not affect nominations lodged prior to 1 October 2020 or nominations for a select occupation or a select position to which alternative evidence arrangements apply.

More Attention

There will be more attention given to employer nominations in relation to Australian workers in similar occupations when considering whether there is a genuine need for an overseas worker including:
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Simone Brew appointed Managing Director of Matthews Folbigg Lawyers

1 September 2020

Matthews Folbigg Lawyers is delighted to announce the appointment of our new Managing Director, Simone Brew. Simone is the head of the firm’s Litigation, Planning and Local Government groups.

Matthews Folbigg Lawyers is the premier medium sized firm in Western Sydney, based in Parramatta, with 8 practice groups and over 60 lawyers and legal service professionals. This is the first time in the firm’s 60 year history that the firm has had a female Managing Director. Even more notably the firm is owned 50% by our experienced female lawyers.

Chairman of Matthews Folbigg Lawyers, Jeff Brown said “Matthews Folbigg is delighted to announce Simone’s appointment as Managing Director. She has been an integral part of the firm’s Executive group for many years and in particular has been instrumental in leading the firm’s response to the COVID-19 pandemic. This is just one example of the strengths that make her qualified to lead our firm into the future”.
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