Essential Considerations for Will Preparation

Creating a Will represents an important legal responsibility in a person’s lifetime, appointing an Executor to oversee affairs after death and setting out who is entitled to the Will maker’s assets. Dying without a Will, known as dying “intestate,” means an Estate is distributed in accordance with a set formula, potentially conflicting with personal wishes and incurring higher costs. Intestate estates may even default to government coffers in the absence of close relatives.

Many mistakenly believe that creating a Will is a task reserved for the elderly or those with significant assets. This is not the case.  Every adult, regardless of age or wealth, can benefit from having a Will. Even young adults should consider drafting a Will to ensure their wishes are carried out if their life is cut short.  From appointing guardians for minor children to outlining how an estate is to be distributed, creating a Will offers peace of mind at any stage of life.

Aside from appointing Executors and beneficiaries, a Will can address crucial matters like guardianship for minors, management of assets until children reach adulthood, burial wishes, and specific asset distribution instructions. Regular Will reviews, especially after significant life events like marriage, divorce, property transactions, or changes in relationships, ensure a Will reflects current circumstances.

A comprehensive Will must cover all assets, including land, shares, bank accounts, investments, life insurance policies, and personal effects.  Assets such as business interests held in companies, trusts and partnerships need special consideration to ensure a Will maker’s wishes are achieved.  Other assets, like superannuation and certain insurance policies, may fall outside the scope of Will altogether and require implementation of separate arrangements.

While homemade Will kits exist, a Will professionally drafted by a Solicitor minimizes errors and ensures it complies with all legal requirements.  Errors in the drafting or the form of a Will may lead to prolonged estate administration and legal battles; the costs of which far outweigh the initial cost of professional assistance.  Thoughtful planning and professional guidance can help navigate the complexities of drafting a Will, ensuring it accurately reflects a Will maker’s intentions while safeguarding their assets for the future. 

Our team at Commins Hendriks understands the importance of crafting a Will that accurately reflects your wishes and safeguards your assets. We offer professional assistance in navigating the complexities of Will preparation, ensuring your document complies with legal requirements and addresses your unique needs. Whether you’re considering your first Will or updating an existing one, our experienced solicitors are committed to guiding you through the process with care and expertise.

The advice provided above is general in nature and should not be taken as formal legal advice.

Navigating Change – Insights into changes to the Family Law Amendment Act 2023

Commencing May 6, 2024, the legal landscape surrounding family matters undergoes a profound shift with the enactment of the Family Law Amendment Act 2023.

Solicitor Director Tara Freeburn heads Commins Hendriks’ family law team and knows the changes coming into play will have an impact on both parents and children. 

“The considerations the Court must have in determining a parenting matter have been quite structured for many years.  However, the landscape is changing with the new reforms, and at least for the foreseeable future, there will be some uncertainty regarding the outcome of contested parenting disputes. We will be reviewing the decisions of the Court with a great deal of interest”.

A notable departure from the prior legal framework, the Family Law Amendment Act 2023 abolishes the presumption of shared responsibility in parenting arrangements. This pivotal change acknowledges the necessity for a more tailored and flexible approach, recognising the distinct circumstances of each family. By discarding the presumption of shared responsibility, there is a focus on the unique dynamics present in individual cases, ensuring that parenting arrangements are devised with a primary focus on the best interests of the child. Without the presumption of equal/shared responsibility, courts are left with a blank canvas to determine what is in the child’s best interest.  This may offer increased protection for victims of family violence as it may be easier to obtain sole parental responsibility orders where family violence has occurred.

There will be a more child-centric approach, with the aim for outcomes that prioritise a child’s safety and well-being. This recognition of the uniqueness of each child underscores the necessity of a personalised approach to parenting arrangements. 

A significant addition, the Family Law Amendment Act 2023 introduces Harmful Proceedings Orders as a mechanism to shield families from detrimental litigation tactics. These orders empower the courts to intervene when one party engages in behaviours that jeopardise the well-being of the child or the fair resolution of the case.

The commencement of the Family Law Amendment Act 2023 on May 6, 2024, signifies a turning point in family law.   The role of a family lawyer is paramount, ensuring parents receive the necessary assistance to navigate these changes and secure the best outcomes for their unique circumstances.   As parents work within these reforms, the guidance of experienced family lawyers becomes increasingly crucial. Tara Freeburn and her team at Commins Hendriks can provide assistance, support, and advocacy, helping parents comprehend the implications of the new reforms and navigate the evolving legal landscape.

The advice provided is general in nature and should not be taken as formal legal advice.

The Bank of Mum and Dad

Rising house prices and interest rates are seeing more parents assisting their children with purchasing their first home. This article outlines the fundamental considerations of advancing funds to your children for this important purchase.

Begin by deciding whether the funds will be a gift or a loan. While a formal document may not be necessary for a gift, it is still beneficial to have a document acknowledging the funds as a gift rather than a loan, and acknowledgement of your child’s receipt of the gift.

With a loan, consider issues such as the presumption of advancement between parent and child, and the statute of limitations that can see loans become unenforceable unless the loan is acknowledged every six years. A Deed of Loan is a useful document that can outline the expectations of the loan and help reduce your risk as lender. Commins Hendriks can provide you with legal advice and assist with drafting a Deed of Loan that addresses these issues and more.

Parents are often concerned monies advanced to their child will be later subject to a family law property settlement in the event the child separates from their partner. The child may wish to consider entering into a Binding Financial Agreement with their partner prior to or during their relationship to quarantine the advance of monies from a property settlement.

It is also important that parents have regard to how the advance of monies will impact their own estate planning – and further – how the loan might be called on to be repaid in the event the parent experiences financial hardship. There are mechanisms such as a loan security over property, a quistclose trust clause in a Deed of Loan, or a Co-Ownership Agreement.

You may opt to charge interest on the loan. If so, your Deed of Loan should be clear about the terms of interest and repayment. Noting that interest will be assessable income.

If you’ve already loaned money to your child, you can still draft a Deed of Loan and a Co-Ownership Agreement after the fact, with your child’s agreement.

When incorporating gifts or loans into your estate planning, consider equalising clauses in your will and explore options like testamentary trusts or forgiving the loan under the terms of your will. Our Estate Planning team are available to further advise you.

Acting as “the bank of mum and dad” requires thought and consideration. We recommend speaking to one of our solicitors to provide specific advice and help draft up these important legal documents. We also recommend discussing the loan or gift with your financial advisor.

The advice provided above is general in nature and should not be taken as formal legal advice.

Article by Rebecca Hartshorne, Solicitor with Commins Hendriks. 

Resolving and Mitigating Property Disputes: A Path to Clarity and Fairness

Property co-ownership can lead to complex disputes when co-owners have conflicting interests. Section 66G of the Conveyancing Act 1919 (NSW) offers an essential legal recourse to resolve such disputes. It allows a co-owner to seek court intervention and appoint trustees to manage the sale of the property, providing a structured and impartial solution.

The Benefits of Section 66G:

  1. Structured Resolution: Section 66G provides a clear and structured process for resolving disputes. Co-owners can apply to the court to appoint trustees who will handle the sale of the property, eliminating ambiguity and personal disputes.
  2. Impartial Trustees: Trustees appointed under this section are typically experienced and impartial individuals who ensure a fair and just resolution. They handle property sale expenses, repayment of secured loans, and distribution of the sale proceeds among the co-owners.

Hogden’s Case: A Recent Real-Life Example: The recent case of Hogden v Hogden (2023) exemplifies how Section 66G can be used to resolve co-owner disputes. The case involved a property in Big Jacks Creek, initially owned by a father and son as tenants in common. After the father’s passing, his executrix sought to sell her share, but the son, Gregory, refused to cooperate. In response, the executrix filed a Section 66G application, initiating a legal process that ultimately led to the appointment of trustees and the sale of the property. The court dismissed Gregory’s claim for a “common intention constructive trust” due to a lack of substantial evidence. The court also ordered Gregory to pay the legal costs incurred by the executrix, emphasizing the importance of reasonable conduct in such disputes.

Resolving and Mitigating Tensions: Section 66G of the Conveyancing Act 1919 (NSW) serves as a valuable tool for resolving disputes among co-owners of a property. It provides a structured and impartial process, allowing for fair distribution of property sale proceeds. As demonstrated in Hogden’s Case, this legal provision can be instrumental in settling disputes, preventing protracted conflicts, and ensuring the equitable resolution of property co-ownership disagreements.

Co-Ownership Agreements: Accredited Specialist in Property Law, Commins Hendriks’ Solicitor Director Glen Lollback, emphasizes the importance of co-ownership agreements in such matters: “In my practice, I’ve witnessed the damage property disputes can inflict on personal relationships. My colleagues and I have assisted numerous clients through property disputes.” Glen recommends a well-drafted co-ownership agreement. Such an agreement should outline the procedures for sale or buyout and specify how the proceeds of the sale will be distributed, thereby providing clarity and fairness to all parties involved.

Navigating Firearm Laws: A Farmer’s Guide to Responsible Ownership and Compliance

In the rural stretches of New South Wales, firearms often play a pivotal role for farmers. Yet, amidst the demands of the land, it’s essential to remain attuned to a pressing responsibility: understanding and adhering to the intricate firearm legislation.

This commitment isn’t merely about legal compliance; it’s about safeguarding communities, sustaining livelihoods, and fortifying farmers as knowledgeable and responsible firearm owners. Yet, myths and misconceptions cloud this legal terrain, potentially leading to unintended violations with significant repercussions.

Dispelling the Myths: No Exceptions Full Stop

Farmers bear the same obligations as all other firearm owners. Whether used for pest management, livestock defence, or the merciful ending of an injured animal’s suffering, every firearm usage is governed by stringent rules. Irrespective of their profession or rural setting, every licence holder is held to the utmost regulatory standards. This ensures that the privilege of firearm possession does not jeopardise public safety.

The Devil is in the Details: Avoiding Unintended Offences

True compliance delves deeper than simply holding a valid licence or registering firearms. It encompasses the specifics, like an errant round of ammunition left in a glovebox, which might seem benign but can constitute a legal misstep. Such oversights, however minor they appear, can lead to serious charges, court appearances, and the potential revocation of a licence.

Being within the bounds of the law requires meticulous attention to both the obvious and the overlooked, from how firearms are transported to the method of ammunition storage. Thinking it’s acceptable to carelessly leave rounds in a vehicle or stored alongside firearms can be a costly mistake, both in safety and legal terms.

Solicitor Insight: A Word of Caution from the Legal Field

Kate Opolski, an experienced solicitor, sheds light on these potential pitfalls. “Discovering forgotten ammunition in your vehicle is not a trivial matter. It can lead to severe legal consequences, including the possible loss of your firearm licence,” she warns. Regaining a revoked licence is a challenging task, as many unfortunately discover.

Kate emphasises that the Firearms Act 1996 (NSW) operates on a foundational belief: firearm ownership is a privilege, not an outright right. This privilege is grounded in a singular, paramount mission — ensuring public safety — and there’s no margin for error, no matter how minute.

Cultivating a Culture of Responsible Firearm Ownership

Committing to the legal intricacies of firearm ownership is a collective endeavour. It’s about nurturing a responsible ethos across rural NSW. By leading through example, farmers can showcase that ensuring robust public safety is harmonious with practical firearm use.

By dispelling myths, adhering scrupulously to storage and transport guidelines, and recognising the broader societal importance, farmers do more than just follow the law. They advocate for a culture of responsibility, promoting the safe, legal, and ethical use of firearms — a legacy that echoes across farms, valleys, and future generations.

Powers of Attorney & Guardianship

Nobody wants to lose capacity; unfortunately, it does happen.  If you lose capacity, do you want your affairs managed by a stranger?

The NSW Trustee and Guardian is the guardian and/or financial manager of last resort for people found to be unable to make decisions for themselves.  Over 16,000 people in NSW currently have the financial affairs and/or medical decisions made by NSW Trustee and Guardian.  Almost one third of these people are between the ages of 25 and 50. 

What many do not know is the NSW Trustee and Guardian does not provide a free service.  It charges its financial management client’s an establishment fee and an annual fee both calculated as a percentage of the client’s assets (excluding their primary residence), together with investment fees.  The NSW Trustee and Guardian is a substitute decision maker.  This means it makes decisions on behalf of (and in place of) its clients. 

To protect, promote and support the rights, dignity, choices and wishes of some of the most vulnerable members of our community, Anthony Morton, an experienced Senior Associate at Commins Hendriks, suggests to his clients “to appoint a trusted family member or friend to be your Attorney and/or Guardian to assist you and make decisions for you should the worst happen.  They are more likely to fully understand your situation, be more responsive and carry out their duties in accordance with your wishes”.  Commins Hendriks can advise you in relation to Powers of Attorney and Guardianship and assist preparing the necessary paperwork.

Protecting Your Future: The Critical Role of Legal Advice When Relationships End

Engaging with a seasoned family lawyer is a cardinal move during separation.

In the current legal landscape, the emphasis is undeniably on the importance of securing professional legal advice when wading through the intricate and emotionally taxing process of a property settlement after a relationship concludes. As more individuals lean towards DIY property settlements to curtail expenses, a salient message emerges: sidelining expert counsel can lead to financial and emotional setbacks.

The perceived high costs of legal guidance push many to contemplate self-navigating their property settlements. However, this approach often conceals inherent risks. What’s frequently underestimated is the profound value inherent in legal acumen. Lawyers bestow essential insights into the nuances of family law, guaranteeing that individuals are cognizant of their entitlements and obligations.

A profound grasp of the financial intricacies of a property settlement is pivotal, given its direct influence on one’s financial status post-settlement. Solicitor Director Tara Freeburn, boasting over 15 years in Family Law, comments, “Many couples might remain oblivious to the extended repercussions of their choices when they resort to a DIY strategy.” Tara emphasises the financial intricacies of asset distribution and spousal support can resonate long into the future.

Pursuing legal counsel isn’t merely about shielding oneself; it’s about empowerment. This strategy equips individuals to make judicious decisions that defend both their financial assets and emotional well-being. Hence, it’s crucial to perceive professional insight as a long-term investment, ensuring a fortified future.

Engaging with a seasoned family lawyer is a cardinal move during separation. In doing so, individuals not only safeguard their rights but also adeptly traverse the intricate financial landscape, culminating in a property settlement that grants them both confidence and serenity.

Obstetric Trauma – The Alarming Epidemic

For over 35 years, Commins Hendriks has been steadfast in supporting families in the Riverina who have encountered birth trauma.

On 21 June 2023, the NSW Parliament established a Committee to inquire into and report on birth trauma. To date, the committee has received over 4,000 submissions. Although the inquiry will not conduct investigations or reviews of individual cases, the shared experiences will play a crucial role in informing the committee about the challenges and issues many families face due to birth trauma.

For over 35 years, Commins Hendriks has been steadfast in supporting families in the Riverina who have encountered birth trauma. Commins Hendriks Solicitor Director, John Potter, stated, “We’ve not only assisted our clients in obtaining compensation but also in accessing support for the ongoing grief and psychological trauma caused by negligent obstetric care provided by hospitals.”

“We’ve represented families who have endured immense suffering. Mothers who’ve sustained injuries, babies who’ve experienced brain damage, and, in some unfortunate cases, those who haven’t survived. It’s an immensely harrowing experience for families,” he added.

Stacy Moses, the CEO of Commins Hendriks, commented, “In light of the increased inquiries we’re receiving, with numerous individuals seeking information, we’re offering free consultations in September and October at both our Wagga and Griffith offices. We’ve allocated time during which our seasoned solicitors will be on hand to address questions and offer advice on potential next steps for families affected by traumatic childbirth experiences.”

To arrange an appointment, please contact our office at 1800 643 779.

We are excited to bring Free Legal Clinics to the Griffith Community

Commins Hendriks chief executive officer Stacy Moses said the business is excited to commence a community initiative which has been operating in Wagga Wagga for many years. Commins Hendriks Solicitors expanded its regional presence earlier this year opening an office in Ulong Street in Griffith. 

“We are excited to offer the Griffith community access to free legal clinics the first Saturday of each month.” Ms Moses said.

“It offers members of the public an opportunity to be guided about any legal issue they may have.

An experienced solicitor provides free fifteen-minute consultations to talk about legal problems. 

Our solicitors can deal with a variety of legal issues, business and personal, and people are generally appreciative of the service available to them.”

Commins Hendriks’ Griffith-based Senior Associate Anthony Morton is a highly experienced and well-respected practitioner who is excited to bring the Free Legal Clinics to Griffith.

“People can walk in, without a booking, and talk in a confidential, obligation-free environment about legal concerns they have.  We have held sessions over the last two months and provided important initial guidance to those who are unsure of the next steps with their legal issue” Mr Morton said. 

Free legal clinics are held in Commins Hendriks offices located at 31-43 Ulong Street, Griffith the first Saturday of each month from 9am to 11am.


Tammy Holzheimer, Solicitor Director, is excited to be a Toolbox Talk Presenter at Women Together Learning’s (WoTL’s) Thriving Women 2023 Conference!

Her presentation, “Key Legal Issues for Rural Business” is focused on identifying some key legal issues and risks that rural businesses encounter and provides tools to assist participants to determine which issues are relevant to their business and the steps they may be able to take to begin addressing those issues and minimising the risks.

This presentation will explore some common issues and offer tools to help in the areas of:

• Comprehensive understanding of your business;
• Planning for the future including succession planning and estate planning;
• “Personal Property Securities Register” know how;
• Appropriate written agreements for farming business to have in place.

Participants will be taken through a tool kit for succession planning and a business health check list. The session will also explore some case studies and will welcome discussion from participants.

Tammy will be joined by many high-calibre speakers who all have a passion for supporting women and the role they play within the agricultural sector.

The conference will be held from 13 – 15 August in Wagga Wagga, NSW. Tickets are on sale via the following link: