BE SPECIFIC WHEN NAMING YOUR EXECUTOR

Posted on Nov 25, 2014

A clause in a will appointing executors in the alternative without stating the circumstances in which they are appointed is void. The Supreme Court was recently required to exercise its power to rectify a will that appointed as executor, “my solicitor … or any solicitor in her employ.” The clause didn’t indicate any order of preference or hierarchy between the solicitor or another employed by that solicitor. For that reason, when the solicitor applied for a grant of probate the matter was referred to a Judge for direction because...

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DNA EVIDENCE IS NOT ALWAYS THE FINAL WORD

Posted on Nov 16, 2014

A man charged with three counts of endangering the lives of occupants of a house by firing shots into the residence in a drive-by shooting where police relied on DNA evidence has been found not guilty after a recent trial in the District Court. Witnesses to the offence identified the car involved as belonging to the accused man, and when it was searched less than an hour later, gloves were located on which gun powder residue was identified. The gloves were also analysed for DNA material and the sample obtained contained a mixed profile from...

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WHEN A CAR ACCIDENT CLAIM HAPPENS AT WORK

Posted on Nov 10, 2014

The issues that can arise when a person is injured at work as the result of a car accident were highlighted in a recent District Court case. The plaintiff was hit by a car while crossing the road to do her employer’s banking. As she was entitled to Workers Compensation a claim was made, although there was a delay before she began to receive weekly income maintenance payments. When there is a delay in paying an injured worker compensation for lost income then they are entitled to interest and in this case, as a result WorkCover had to pay...

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NOT LIVING TOGETHER BUT STILL DE FACTOS?

Posted on Nov 7, 2014

A de facto relationship doesn’t legally end simply because one partner has sexual relations with others or even if they get married to someone else according to a recent Family Court decision. The case has reinforced that anyone thinking of separating from their de facto partner needs to express that intention to the other party for separation to have occurred. In the case of Cadman & Hallett the issue was whether a de facto relationship existed and when separation occurred. Mr Cadman and Mr Hallett commenced living together in a de...

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ICAC – WHAT IS IT AND WHAT CAN IT DO?

Posted on Oct 30, 2014

The South Australian Independent Commissioner against Corruption (ICAC) was established in South Australia in 2013 and was set up to investigate corruption, misconduct and maladministration in public administration. The Independent Commissioner against Corruption Act 2014 defines public officers and public authorities as follows: Public officers include: Members of Parliament Members of the Judiciary Police Officers Public Sector Employees Councillors Council Employees Persons contracted to perform work for a Public Authority or...

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DISPUTING A WILL – WHAT’S THE COST?

Posted on Oct 28, 2014

The old principle that legal costs arising from disputing a will are usually paid out of the estate (“known as the Probate Costs Rule) is outdated and in need of reform according to the Supreme Court. In a recent case, the deceased had hand written his intentions for his estate in a note book. It was not signed or witnessed as is normally the case for a valid will. Nevertheless, the Court found that the deceased, having studied law and being aware of succession laws, intended that hand written note to form his will and accordingly, the...

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NO CONVICTION – ITS NOT ‘UNUSUAL’

Posted on Oct 21, 2014

A case involving a traffic charge does not have to be ‘unusual’ for a Court to refrain from recording a conviction. Recently, a man was charged when a car he owned was driven unregistered and uninsured. He was told by a Magistrate that his case was not unusual and therefore he would have to receive a fine equivalent to the expiation fee and a conviction. On appeal to the Supreme Court it was held that the Magistrate had made an error in the way that a Court should deal with the question of whether or not to impose a conviction. The...

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AVERAGE WEEKLY EARNINGS – WHAT IS A FAIR AVERAGE?

Posted on Oct 20, 2014

When it comes to calculating weekly Workers Compensation payments sometimes the ‘average’ just isn’t right, as the Workers Compensation Tribunal decided in a recent case. A person who is incapacitated as a result of a work injury is entitled to weekly payments of income maintenance calculated in accordance with the Workers Rehabilitation and Compensation Act. The way that the rate of those payments is calculated is set out in section 4 of the Act which states that it is, “the average weekly amount that the worker earned during the...

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$600,000 FOR NOT WEARING A SEATBELT – WHO’S AT FAULT?

Posted on Oct 14, 2014

A woman who was left a paraplegic after suffering catastrophic injuries in a car accident appealed the decision of a Court to reduce her damages of $2,400,000 by nearly $600,000 because she wasn’t wearing a seatbelt. The case involved provisions under the Civil Liability Act that reduce a person’s claim for damages as a result of a car accident by 25% if they were not wearing a seatbelt regardless of whether that was the reason for the injury. It also concerned a separate section that reduces a passenger’s damages by 50% if the accident...

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YOUNG DRIVERS BE AWARE

Posted on Oct 13, 2014

On 28 July 2014 a new Graduated Licensing Scheme replaced the old licensing system. It is important for young drivers on a provisional licence to be aware of the changes and, more importantly, how those changes will affect drivers. The main changes apply to P1 drivers under the age of 25 years, both current P1 licence holders and those who obtain their licence after 28 July 2014. It is now an offence to drive with more than one passenger aged 16 – 20, and it is also an offence to drive between midnight and 5am. There are exceptions to...

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