Author: Jacqui Brauman

by Jacqui Brauman Jacqui Brauman No Comments

Psychology of negotiating

Psychology of negotiating

More and more often, when talking a client through a strategy to approach negotiating, I am explaining psychology to them. Even this is a new tactic that I’ve adopted myself, because I would often keep the whole reasoning to myself and just explain what the best approach would be.

Even though clients often say ‘that’s why I’m hiring you; you know best’, I am talking them through more detail. This is also part of the psychology of negotiating – to also have your client on your side and fully invested in our course of approach being the correct one. I explain every step to them, and the reason for the step, and then I explain that it’s been done and the reaction we got.

negotiating

I have also had lots of clients come to me, unhappy with the result they got with another solicitor, and I wonder how much psychology that solicitor has employed in managing the expectations of their client and in employing a strategy.

Fundamental to negotiating is having an understanding of the mind and emotional state of the the other party, and often their lawyer as well. The opposing lawyer often has a lot of impact on the outcome of a negotiation, because many are emotionally and egotistically involved when they needn’t be. 

So what are the basic approaches to having a successful outcome to your negotiating?

  1. Separate people from the problem

This is really tricky, because we’re all people – even the lawyers! Like I’ve already said – choosing the right lawyer is important, because if the lawyer’s own feelings and ego get in the way, then your negotiation will be prolonged. 

So you, with encouragement and guidance from your lawyer, needs to narrow your focus down to the issues. Not how much water has passed under the bridge between the people negotiating. 

  1. Focus on interests, not positions

The key, then to move forward, is to focus on what each of the people actually want out of this negotiation. Not on the position they may have entrenched themselves into. 

What they want is psychological, not necessarily practical or financial. So, maybe this step returns to the people again, over the problem. But this is forward focused.

Most people want to move on, to retain their pride, and sometimes to inflict pain and shame on the other person. They want to feel like the winner.

  1. Invent options for mutual gain

So this is the lawyer’s job – make sure you feel like you are going to win. And also be able to convince the other party that they’re also getting a win.

Unfortunately, many in the legal industry believe that if both parties are unhappy, then it’s a fair solution. However, the aim is actually to have both parties feel like it’s fair and they’ve had a win!

Your success in negotiating a settlement or terms of an agreement often comes down to your selection of a lawyer. Choose well, and do your research first. 

by Jacqui Brauman Jacqui Brauman No Comments

How to tell your kids about your divorce

Children grow up surrounded by notions of what is “happily ever after” and what their family should look like and how they should behave. When parents fight or just don’t get along, although the child is sad, in most cases, they don’t conceptualise their parents getting divorced. 

So how do you tell them?

Remember, it is not about you! You have made the decision to change your life and that is an empowering and brave decision – telling your child is not about that – it is about their world and their fears and aspirations.

There is a plethora of articles’ on the web that give noteworthy tips on what you should do, but life is not a planned event and not everything can be controlled. So a fail safe way on how to tell your children that you are getting divorced is to be mindful of what not to do. 

Pick your moment

Telling them when they are tired, angry or sleepy is standard poor communications if you were presenting something to a seasoned adult but to do that to a child is just plain cruel. Be mindful of how your child is feeling at the time and what is happening in their lives. In other words, telling your 13year old that you are getting divorced just as she is sitting for an important assessment is sub optimal. 

Plan your moment

There is no need to choreograph your news like a wedding but there is merit in having a plan of what you want to say. Have an agenda in mind and a general flow of things that you should cover. Again, remember, it’s not about you – it’s about them. Yes, you can start with the statement that you are getting divorced but then shift the focus on issues that will affect the child, for example how it will affect their living arrangements and how often they will see the other parent. Redefine the perception of the family unit i.e. just because you are no longer going to be living together does not mean that they are no longer part of a healthy and functioning family. Remind them that this is your decision and not a reflection of anything that they may have done. 

Managing responses

Your children may surprise you and say that they knew that it was coming or they may burst into tears. Whatever the response is, a good way of keeping communications flowing is to be respectful that there is no right or wrong way to react. The right or wrong way is in how you respond. Children are vulnerable as well as ego centric and as such, their responses are clues on underlying concerns or fears. The news you are giving has many implications – know the implications to your child and you can prepare for the reactions. Tune into what they are saying, ask questions and respond to their underlying issues. You know your child best and you will have an idea if they are not satisfied with your responses. 

Keep an open dialogue

So you have told your children that you are getting divorced and it went well – at the time. After the talk about getting divorced, comes the reality of the divorce i.e. the change in living arrangements, dinner times, family get together, to name a few. Each change in event will come with a new set of challenges the child has never faced before. Let them know that the discussion of “we are getting divorced” is never over and if need be, they can talk about it and raise questions as they arise. Most of all, if you don’t know and don’t have an answer to something, be brave enough to be honest and say you don’t know. You were in a family together – you can deal with the implications of a divorce together. 

by Jacqui Brauman Jacqui Brauman No Comments

Structuring your business

Take control of your business from the outset and have the right business structure. The right structure for you could depend on a lot of different factors: your goals, your current business size, the size of business that you want to have, how many owners there are, and what stage of business you are at. 

As a small business, there are tax concessions that can be used to change your business structure later. So you could start with a simple structure to begin with, and move the business into a more complex structure for growth and bringing in new owners later.

These are the main structures that you can run a business in Australia:

Sole Trader

A sole trader is when you own and run the business by yourself. You have an ABN personally, and there is no legal distinction between you personally and your business. You receive all the profits, and are personally liable for all losses, debts and taxes incurred by the business.

You can have a business name in the form of a trading name registered with ASIC.

Advantages:

This is cheap to set up and run – simplest business structure to have. You have total control, you don’t have to answer to anyone, or share with anyone, and you have access to capital gains tax concessions.

Disadvantages:

Once your business grows and earns a reasonable profit, your income tax is at marginal rates, so you get taxed at a maximum of 46.5%. You have no asset protection, except by insurance, so your creditors can sell anything you own to recover money owed to them, whether it’s a business asset or not. The business also dies with you, and your family will only be able to recoup the equipment and stock value.

Partnership

A partnership is usually formed by an agreement between two people to run a business together – so you and your friend decide to go into business. You register for an ABN as partners. You both share the profits and losses of the partnership. There is no legal distinction between the business and the individual partners, so together and individually you would be liable for the debts and taxes of the partnership. The partnership does not pay income tax directly. The profits are divided between partners and the income tax is paid in your personal income tax return.

Again, you can register a business name for your partnership; also a pretty simple business structure.

You should have a formal partnership agreement between you both, and the partnership agreement should include a buy/sell component to determine what happens if one of you wants to leave, or if one of you has to leave due to injury or illness.

Advantages:

A partnership can be nearly as cheap as a sole trader arrangement to set up, but the running costs are slightly higher because an extra tax return needs to be done every year. The beauty of a partnership is that it can be as flexible as the partners, and a good partnership agreement can solve most problems and be altered when things change as the business grows. 

Disadvantages

Similar to a sole trader arrangement, in a partnership you are taxed on the income in your own tax return, so you are taxed at marginal rates at a maximum of 46.5%. Again, there is no asset protection except insurance, and creditors can target either or both partners’ personal assets to recover debts. The partnership also ceases on the death of one of the partners, so a partnership agreement that provides for the spouse or family of a dead partner is crucial. 

Limited partnership

This is an interesting form of partnership that could be used for investment, for example. One partner has full control and the other partners is limited and passive. The limited partner’s liability for the business debts is also limited up to the amount of their investment.

These can be registered with your relevant State government authority, such as Consumer Affairs.

Joint Ventures

A joint venture is like a partnership between companies. Separate companies come together under an agreement to work towards a single goal or project. The partnership can be unincorporated, or a new company can be formed to incorporate the partnership, and each of the parties to the joint venture own shares in the new joint venture company.

Company

You could form a company for your business structure. Companies in Australia can be public (shares are traded on the stock market) or proprietary (private). A proprietary company is the type you would consider for a small business, and it would include “Pty” in its name for “proprietary”. 

A proprietary company can have one shareholder and a single director, or it can have multiple shareholders and directors. It will have a constitution that controls the governance of the company, and you should have a shareholder agreement between any shareholders. 

Most proprietary companies are also limited, so they have “Ltd” in their name. This means that the shareholders’ liability to creditors of the company is limited to the shareholder’s original investment (which is often a $2 share!).

A registered company is given an ACN (Australia company number) and will also needs its own ABN. A company is a separate entity or legal personality from its owners and managers. 

Advantages

A company is taxed at a flat rate of 30% on profits. Profits can stay in the company, or they can be paid out to shareholders, and the shareholders get the benefit of receiving money with tax partially paid (franked credit). Shareholders and directors have their personal assets protected because the company is a separate entity and liability is limited – to make sure directors liability doesn’t increase, be careful not to give personal guarantees or trade while insolvent! The company also doesn’t die when the directors or shareholders die, but these can be transferred in a Will to the next generation, or to someone buying the business from you.

Disadvantages

The set up and running costs are more than the previous structures. A company doesn’t get some of the capital gains tax concessions that sole traders and partnerships get, but they still get some, particularly if a small business. 

Trusts

A trust is a complex legal relationship which arises when a person (trustee) holds property for the benefits of someone else, or a group of people (beneficiaries). A business can be carried on by a trust where a trustee (which is often a company rather than an individual) owns asset and carries on the trading activities of the business on behalf of the beneficiaries of the trust. This is often in the form of a family trust; so the family trustee would run the business for the benefit of the parents and children of the family. 

There are various types of trusts, and the way the trust works is all determined by the trust deed. Here are the most common forms of trust:

 Unit Trust

A unit trust is a good way of business partners coming together to own a flexible business structure. The share or each partner in the unit trust is determined by the units that each person owns (like shares in a company). 

The unit trust is not as regulated as a company, and the whole governance is dictated by the unit trust deed that the individuals set up and agree too themselves, and can alter at any time. Business losses are also trapped in the trust, which is usually a good thing. The trust can offer good asset protection, depending on the wording in the trust deed. A trust is usually limited to 80 years, which should be sufficient for most businesses, and the succession of the business is all determined through the trust deed. 

The main downside is the set up and running costs, particularly if you want a company as the trustee, so you might be looking at a couple of thousand dollars a year to do all the tax returns, financial statements and other compliance issues. 

Discretionary (family) Trust

Unlike a unit trust, where the unitholders’ interest in the trust is determined by their units, the interests of the beneficiaries in this trust are all at the complete discretion of the trustee. (So the family will want to also control the trustee!)

This is the most flexible way to split income between multiple family members. It has good asset protection, if the trust deed is drawn up right. If your business is a family business, and you can afford the extra running costs, a structure that includes a family discretionary trust is one of the best structures you can choose. 

More on business structure.

by Jacqui Brauman Jacqui Brauman No Comments

Superannuation succession for blended families

Mark and Jenny are married. Both of them had previous marriages, and Mark has no children from his previous marriage, Cara and Chris who are now both adults. Jenny has a son, Lachlan, who is 12 years old and lives with her and Mark. They have no children together.

After his first divorce, Mark has very few assets. He was able to retain his superannuation with AustralianSuper, an industry super fund. He and Jenny have bought a house together, jointly owned, and mortgaged up to 70% of its value.

Mark has $600,000 in his superannuation fund, and has life and total permanent disability insurance cover for a further $750,000. He would like to divide his superannuation benefit between Jenny 60%, Cara 20% and Chris 20%. Remember, superannuation is not an estate asset that can be dealt with under a Will, unless Mark makes a binding nomination that all his death benefit goes to his estate.

Without a binding nomination to AustralianSuper, the trustee of the super fund is likely to determine to leave the majority of the superannuation (if not all) to Jenny and Lachlan (as a financial dependent and step-child). If Mark wants to ensure Cara and Chris get some of the benefit, he will need to make a binding death benefit nomination. It is important to find out from AustralianSuper whether the binding nomination can be non-lapsing, or whether it lapses every 3 years and Mark needs to remember to redo it. There is a risk that the binding nomination would lapse if Mark forgets to redo the nomination, and his own children could miss out. 

Out of Jenny, Cara and Chris, only Jenny would be within the definition of a death benefit dependent for tax purposes. Cara and Chris would need to pay part of the benefit that they receive as tax, at the income tax rate that they otherwise earn. They may not each receive an equal amount after tax. 

If Jenny died before Mark, Mark would like to have Lachlan receive part of the superannuation. But if Jenny was dead, then Lachlan would no longer be a ‘child’ of Mark (as he was only a step-child under the definition whilst his mother was alive). However, if Lachlan is still a minor and still living with Mark, then Lachlan would likely fall within the definition of a financial dependent instead, so Mark could nomination Lachlan in that situation.

Mark has given Jenny a power of attorney if he loses capacity. If he loses capacity, he could be entitled to the insurance cover associated with his benefit. Jenny, as his attorney, could withdraw from his fund on his behalf prior to his death. This would render the binding nomination either useless (depending on how much was withdrawn), or would significantly deplete the amount of money that his children would inherit. This would either be a risk that Mark would have to take, or he could prepare a Will with a specific gift clause that tracks any superannuation and ensures it is equalised between his children.

For more on money or estate planning.

by Jacqui Brauman Jacqui Brauman No Comments

Common parenting mistakes to avoid following a separation

Parenting is challenging for those that enjoy a successful relationship and there is an added level of complexity when parents are separated. Whilst a separation brings with it emotional turmoil and adjustment, if not mindful, parents can make mistakes which can end up causing their children significant distress. These are some of the most common mistakes separated parents make and we hope that recognising them will assist you in avoiding them. 


  1. Showcasing the worst of the worst conflict to the children 

Children that have to witness the awful scenes where spouses insult, threaten, belittle, and even resort to physical violence can suffer from a lack of security. Criticising the other parent can cause the child to feel guilty for loving that parent. Children also may start to believe that there is something wrong with them, since they are related to the person being criticised. Moving forward, children may have anxiety disorders, sleep issues, and even problems forming stable relationships themselves. Parents should also be mindful that such emotional abuse constitutes child abuse and when reported, the Department of Human Services is duty bound to investigate. 


  1. Using the Children like ‘MSN’

A common follow on from a separation is the unwillingness to communicate with your ex-partner. The alternative of asking your children to act as go between for messages translates to asking your child to do something you and your partner could not handle doing yourselves. 

Using your child as a quasi ‘MSN’ is a mistake, frankly, and it can lead to the alienation of the other parent over time. Partners should instead use email or text messages, and these can serve as record in case where one party is not complying with court orders.  


  1. Your Child is NOT a ‘Stand-in’ for your ex-partner 

A separation of partners does not mean that now the boy becomes the man of the house and the girl does not turn into the woman of the house. The responsibilities of parenthood are not a child’s burden to bear. It is important that parents don’t cheat their children of their childhood by making them the ‘man of the house’/woman of the house. 


  1. A Spanish Inquisition post weekend with the other parent

When your children return home after their weekend with your partner, they should never be interrogated. It is not a child’s role to act as an umpire whilst parents are engaged in mortal combat. Such a burden is another example of emotional abuse and can lead to long term emotional damage. The opposite of the Spanish inquisition is to prevent a child from mentioning their time with their other parent. So, don’t interrogate your children and don’t pretend like the time with their other parent is a taboo discussion. Instead focus on asking fun questions and restrain yourself from giving a commentary on their experiences. 


  1. Your child is not part of the asset pool nor are they part of a contract

Don’t discuss property settlements, parenting time and primary care in front of your children. If you are discussing such matters, be mindful of the ‘little ears’. To you its just a discussion about the ‘nitty gritty’ of property and parenting but to a child it feels like they are just part of a business deal and that they are a burden on one or both parents. 

What if I have already made these mistakes?

If you recognise that you have made any of these mistakes, you can repair the damage caused by doing the following:

  1. Identify your mistake in detail and have a conversation about why it was wrong;
  2. Say sorry;
  3. Commit to changing your behaviour from that moment on.
  4. Permit your child to tell you if and when you inadvertently make that mistake again.

For more information on family and separation click here.

by Jacqui Brauman Jacqui Brauman No Comments

Solicitor for conveyancing

As a solicitor, of course I’m going to say that someone buying or selling a property should use a solicitor (lawyer) to do their conveyancing work. But what are the reasons why I recommend this and what are the primary differences in the service provided?

Training

The training and licensing requirements for conveyancers are different in each State, so everything I’m going to address relates to Victoria. 

To be a solicitor, someone has to have a Bachelor of Laws, at a minimum, which takes the equivalent of 4 years of full time study. During that bachelor (undergraduate) degree, they will study Contract Law for 6 months, Property Law for 6 months and Land Law for 6 months. Along with all the other units of study, the Bachelor of Laws teaches law students to think as lawyers. 

After completing the degree, to be able to get a practicing certificate as a solicitor, the person would need to complete a Graduate Diploma in practical legal training, which takes another 6 months. This is when they are exposed to the practical aspects of conveyancing. 

Once they have a practicing certificate, solicitors are required to undertake ongoing legal training each year to be eligible to reapply for their certificate annually.

There are different levels of practicing certificate, and to be able to operate a trust account, a solicitor must pass an extra course on trust accounting regulation and compliance, and pay an auditor twice a year to audit the account. Most law firms have a trust account, but many conveyancers do not.

To be a conveyancer, someone must have a Diploma in Conveyancing, which takes the equivalent of 3 months of full time study. They then need to have a certain amount of practical hours of experience on the job to be signed off to get their own licence. 

Industry

Both solicitors and licensed conveyancers must hold professional indemnity insurance, and both need to be registered with their industry body to have a licence issued to them – this is the Law Institute of Victoria and Consumer Affairs Victoria respectively. 

In NSW, they were the first to deregulate conveyancing and let licensed conveyancers into the industry, taking the work off solicitors. There was a good reason for this, because solicitors in NSW charged on a percentage basis depending on the value of the property. This has never been the case in Victoria. Solicitors have generally charged a fixed fee for conveyancing, so the gauging wasn’t going on in this State. Arguably, there was no need to deregulate conveyancing in Victoria in the first place. 

Cost

Solicitors cannot compete with conveyancers for cost, so what they compete on is value for money and quality of service. Conveyancers generally work for themselves, and often work from home, so they don’t have the overheads and costs that solicitors have. Solicitors have offices, staff, higher insurance, more regulations to comply with, and often operate trust accounts which require regular audits. 

Solicitors do fixed fee conveyancing in Victoria, as do conveyancers. Conveyancers are generally a couple of hundred dollars cheaper. 

In the Office

Conveyancers generally work from home and work alone. 

Solicitors generally work in small, medium or large law firms with support staff. Quite often there are combined decades of experience, and support staff are often qualified conveyancers who didn’t want to go out on their own. 

Solicitors operate trust accounts which make settlements much easier in most cases, particularly for purchasers. Instead of the purchaser running around getting bank cheques and getting them to settlement, the solicitor can ask for all the funds into their trust account, and they do all the running around for you (hence, quality of service).

When things go wrong

Conveyancers have a very narrow scope. When something usual happens, they have to refer you to a solicitor. 

If the contract falls over and becomes a fight, the conveyancer will need to refer you to a solicitor. 

So better to start with a solicitor that can handle everything in the first place!

Here’s more on buying and selling property.

by Jacqui Brauman Jacqui Brauman No Comments

Offering vendor finance

So you’re selling your house, investment property or business? The person you’re negotiating with to buy it from you doesn’t have enough money to pay you what you want. Either the deal falls over, because they cannot pay you your asking price, or you can get creative and offer to help finance the deal for them. But vendor finance may be your solution.

If you don’t know what vendor finance is, read this first.

There are two prime ways in Victoria to offer vendor finance. Both have their advantages and disadvantages, so it really depends on your circumstances and what you feel most comfortable with. 

Terms contract

With real estate, you are able to enter into a long term Contract of Sale that involves instalment payments, and the purchaser taking possession of the property before making the final payment. 

You must pay out your existing mortgage to be able to enter into such an arrangement, or at least pay the mortgage off with one of the first instalment payments before the purchaser takes possession of the property. 

When the purchaser takes possession, other than your contractual rights, you can take security over the property in one of two ways:

First, you can retain the Certificate of Title. You don’t register any Transfer of Land, and you remain the registered proprietor of the property. The rates will still be in your name, so you will continue to pay these until a final settlement. 

Alternatively, if you don’t want to remain the owner, you can register the Transfer of Land, so that the purchaser is the registered proprietor of the property. You would then register a mortgage over the property based on the terms Contract of Sale. The purchaser couldn’t sell or otherwise deal with the property without your consent, and you would have rights to recover the property and resell it if the purchaser failed to pay you (just like a bank mortgage). You would also have your Contract of Sale that you could sue for damages under, if the purchaser failed to pay. 

Mortgage

Instead of taking a mortgage under a terms Contract of Sale, you could just settle as usual on the Contract (after 30 or 60 days), and then you would take the position of the bank. You would sign loan documents which would entitle you to instalments and interest over a particular period. You would then rely on that loan to register a mortgage over the property.

These methods offer much more security when you are dealing with real estate. If you are dealing with a sale of a business, you could negotiate a payment by instalments under the Contract of Sale. You could specify how you wanted to secure those payments, whether the Contract gave you a right to take over the business again, or whether you were allowed to register a security interest on the Personal Property Securities Register (PPSR) over stock or generally over the assets of the business. 

Alternatively, you could enter into a commercial loan arrangement, with or without some negotiated security, as you could just rely on the terms of the loan agreement if the purchaser failed to pay.

For more on buying and selling real estate, click here.

by Jacqui Brauman Jacqui Brauman No Comments

Protections for Small Business

As of November 2016, small businesses have some of the protections that consumers have under the Australian Consumer Law.

Traditionally, consumers are protected from unfair terms when buying goods or services from businesses, and this will continue. These protections will be extended to small businesses, so that small businesses will be protected when buying goods or services from big businesses, or even from other small businesses.

A small business will be any sole trader, partnership, or corporate entity that has less than 20 employees. There is no other revenue test, or any other test for a small business. So if you are a small business entering into a contract to sell goods or services to another business, it would be important for you to know if you were dealing with a small business or not.

The other condition is that the contract for the goods or services must be under $300,000, or if the contract is for services over more than 12 months then the price cannot be more than $1,000,000.

For big business, this means that they will need to review their terms and conditions for contracts with small businesses, to make sure that there aren’t any unfair terms.

So what are some terms that could be found to be unfair?

  • A term that allows the big business to terminate the contract, but not the small business
  • A term that penalises a small business for breaching or terminating the contract (like having to pay a fee)
  • A term that allows the big business to vary the terms of the contract, but not the small business
  • A term allowing the big business to change the price of the contract, without allowing the small business to terminate the contract
  • A term that allows the big business to vary the characteristic of the goods or services, without allowing the small business to terminate the contract
  • A term that allows the big business to assign the contract to someone else, without the consent of the small business
  • A term that tries to limit the small business from suing the big business
  • A term that tries to limit the evidence that a small business could use against the big business, or
  • A term that tries to shift the burden of proof onto the small business.

Small businesses that enter into contracts with big businesses and other small businesses might want to have two different versions of their standard terms and conditions. The small businesses will need protections from unfair conditions, but the big businesses get no such protection.

If you’re a small business, then you now know that you don’t have to be pushed around by bigger businesses anymore, and that you have avenues to seek remedies for unfair terms of contracts you enter.

Here’s some more information from the ACCC.

by Jacqui Brauman Jacqui Brauman No Comments

Homemade Wills and Will-kits

Another homemade will has just cost a family tens of thousands of dollars in Western Australia, with the family having to work out what the Will actually says in the Supreme Court. 

The will-maker must have thought they were very smart, but the language used in Wills has been developed over hundreds of years, for a reason. There are phrases that create trusts, and gifts, and duties and instructions that are in-built, not having to be spelt out. 

This Will was a 14 page will, without numbered paragraphs, but headings on each page dealing with different assets. Despite thinking he was thorough, the will-maker left out instructions as to what was to happen to the proceeds of the sale of many of the assets. He put time into giving instructions that he didn’t need to do, about how assets were to be sold, and about opening special purpose bank accounts, but then failed to direct who they were to be left to!

This case caused a flurry of comments from lawyers around the country on LinkedIn, and I was directed to a fantastic article written about a year ago by Darryl Browne. He succinctly confirms that will-making is not like filling in a form, although will-kits and online wills try to fill this gap. 

Darryl’s article highlight a few priceless comments by Supreme Court judges over the years:

‘Homemade wills are a curse”

“All of this could have been avoided if the testator had consulted a lawyer and signed off on a will which reflected his wishes. There is no question but that engaging the services of a properly qualified and experienced lawyer to draft a will is money well spent”

“But way [this will-kit will] has been drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the will had been drafted by a competent legal practitioner, this problem would not have arisen, and the parties would have been speared a great deal of trouble and expense”

The finest being about a ‘friend’ who helped prepare a will: “The deceased either was offered, or sought, the assistance of an entirely unqualified person to prepare these three documents. That person would no doubt protest that she was just trying to help a friend. She was no help at all. A claim of good intentions is no defence. The fact is that unqualified people who intermeddle in the preparation of documents that have legal operation cause great harm. The defence for such officiousness is often one of trying to save the will maker money. That is sterile. This deceased could have had several wills professionally prepared for a fraction of the cost that has been imposed on her estate by this application. The legal system should not be blamed for that expense”

It will be interesting to see in the future whether friends who ‘intermeddle’ with the creation of wills could actually be charged with providing legal advice without the proper qualification, or at the very least be legally liable for the cost the estate incurs in having to get a badly drafted will interpreted by the Supreme Court. 

We do offer an online will service, for very simple situations, but we also offer a review service so that you can have your draft professionally reviewed, so that the cost of the online will and review costs less than a properly drafted will. This small cost saving might make you sleep at night, but with the cost of a will starting from $350, it’s a very cheap solution to preventing your hard-earned assets disappearing in legal fees later. 

by Jacqui Brauman Jacqui Brauman No Comments

How to Control Your Legal Fees

Depending on who you talk to, legal experiences can range from horror stories to feel good movies – but there is a way to control your legal fees. The genre of your legal experience as well the harsh reality of legal fees is however, to a large extent, within your control. 

Is there an alternative to going to a lawyer such as mediation?

Mediation can be used to facilitate negotiated settlements with the assistance of a neutral third-party mediator. This allows the parties to control the decision-making process. Mediation is not a fix all remedy for example, it will not be appropriate for those matters where time is of the essence and or for matters that involve violence or risk to a child. 

Find a Lawyer with a Good Bedside Manner

It is important to assess your lawyer’s bedside manner on your first meeting, just like you would when ‘shopping’ for a doctor. That’s not to say that a good personality is enough, or that your lawyer is your best friend. A lawyer’s credentials and reputation is paramount, but you must also be able to instruct them according to your needs and you should be comfortable with their guidance. A good relationship with your lawyer will make you comfortable enough to relay what is a priority for you and on the flip side, your lawyer will be able to guide and advise you without causing you anxiety, stress or offence. It then leaves time for concentrating on the issue at hand – and you have more control of your legal fees. 

Diagnosis and Prognosis

Everyone is an expert and Google has a lot to say! A lot of advice is not necessarily the correct advice. It is important to obtain the right legal advice about your matter so that you are aware of your rights and obligations. If you’re running around doing a whole lot of unnecessary things, you won’t be in control of your legal fees. For example, if you have issues regarding a parenting matter, consult a lawyer that is experienced in Family Law. Once you have an accurate and reliable diagnosis, a prudent prognosis is sure to follow. You must know by now be equipped with the best course of action that will be unique to you and your counterpart i.e. an agreement at the outset of a matter is ideal for some parties and not appropriate for others.  

The Value of Respectful Communications 

‘An ounce of honey attracts more flies than a ton of vinegar’

You can be succinct and firm about what you wish to achieve but good manner and form will allow your wants and needs to be received better than if you relay them with emotion and ambiguity. Compromise can be reached easily when parties realise that they have different hierarchy of needs and wants, i.e. what is important to you may be what the other person is willing to compromise on and vice versa. Above all, be mindful that the legal system will not tolerate well vindictiveness and retaliation. Remember! Traits such as being reasonable and communicative have a direct correlation to the amount of time that your lawyer will intervene and act on your behalf and the flow on effect of your lawyers’ fees.

The Role of Your Lawyer – Advocate or Therapist?

Your lawyer should have a good bedside manner, but his or her role is to serve as your advocate and be a source for legal advice. They are not to be confused with counsellors, best friends or therapists. Hourly rates for professional counselling are significantly less than hourly legal fees and are often covered by extended health plans. Even if you don’t have extended health benefits, it is more cost effective to discuss the emotional aspects of your case with a psychologist or other counselling professional than with your lawyer. If you’re not calling your lawyer every day, you can control your legal fees.

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