In Check Issue 76 | September 2017

27 September, 2017
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Justin Toohey – new LPLC CEO

LPLC is pleased to announce that Justin Toohey has been appointed as Chief Executive Officer of LPLC, effective from January 2018, following the retirement of the current CEO, Miranda Milne.

Justin’s appointment follows a comprehensive recruitment process with the assistance of executive search consultants.

Justin is a professional indemnity lawyer who combines experience over 30 years in both private legal practice and at senior executive level with member-based insurance schemes at LPLC for the legal profession and at IBL Ltd for the Australian Institute of Architects.

Having held the position of LPLC’s Deputy CEO and Head of Claims since 2005, Justin also previously served as a panel solicitor to LPLC during his days in private legal practice. Among Justin’s key achievements at LPLC are the successful implementation of barristers into the LPLC scheme since 2005.

Justin is uniquely placed to assume his new role at LPLC and brings a clear commitment to further strengthening LPLC’s relationships with all our stakeholders.

PEXA news

From 1 December 2017 law firms and conveyancers must use PEXA when lodging the following documents:

  • caveats and withdrawal of caveats
  • mortgages, discharges of mortgage and refinance transactions, whether these involve authorised deposit-taking Institutions (ADIs) or not. Prior to 1 December only documents involving ADIs needed to be lodged via PEXA.

Land Use Victoria has covered these requirements in a number of Customer Information Bulletins.

Firms that are not registered for PEXA need to think carefully about what they will do before the due date, especially those that do not normally conduct conveyancing but do lodge caveats, such as in family law matters.

Do not leave it to the last minute to sign up for PEXA as PEXA’s capacity to process a flood of late applications will be limited.

Changes to the Administration and Probate Act 1958 (Vic)

The Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 (Vic) received royal assent on 19 September and is scheduled to come into operation on 1 November 2017 unless proclaimed earlier.

Those who practice in this area should read the amendments carefully. Below is a summary of some of the changes.

A new Part IA on intestacy is added to the Administration and Probate Act 1958 (Vic) (the Act). The new law sets out in clear terms who is to receive the estate in the event of intestacy.

  • Where the intestate leaves a partner and there are solely children that belong to the intestate and the partner, then the partner receives the whole estate (sections 70J to 70K).
  • Where the intestate leaves a partner and there are children that belong to the intestate but not the partner, then the partner receives a defined partner’s statutory legacy, the personal chattels, interest on the partner’s statutory legacy and half of the balance of the estate. The other half of the balance of the estate is to be divided equally between the children (section 70L).
  • The partner’s statutory legacy is set at $451,909 and indexed every year. The formula for indexing is set out in the Act but the Minister must publish the new value every year (sections 70M to 70N).
  • A partner may elect to acquire property from the intestate’s estate. A personal representative must give the partner a notice of their rights within 30 days of the grant of administration. The partner must exercise the right within three months of receiving the notice or three months from the grant of administration if the partner is the personal representative. The election must be in writing and sent to the varies parties named in the Act. The provisions set out when a valuation is required, when an application must be made to court for an authorising order and when payment and transfer must be made (sections 70O to 70Y).
  • If there is more than one partner the estate must be dealt with either by distribution agreement, distribution order or in equal shares. An application for a distribution order must be made within three months of receiving a notice from the personal representative. If three months after the notice is given no application is made or agreement reached the personal representative must distribute the estate equally between the partners (sections 70Z to 70ZE).
  • The hierarchy of distribution is clearly set out if there is no partner and includes parents, siblings, grandparents, uncles, aunts and cousins (sections 70ZF to 70ZL).

Pecuniary legacies will be entitled to interest on unpaid amounts after 12 months from the date of the deceased’s death (section 39B(2)).

New sections 65B to 65E will deal with the following changes to executor’s commission.

  • The power of the court to order commissions or fees to be reduced or repaid
  • Written informed consent must be given to a testator before they sign a will before an executor can rely on a remuneration clause in a will
  • An executor can receive fees and commission if they obtain the informed consent of each interested beneficiary
  • The information that needs to be given to beneficiaries to obtain their consent to receive fees or commission.

The majority of the changes will only affect anyone who dies after the amending Act comes into force save for the executor’s commission provisions which only apply to wills made after the amendments come into force.

Powers of attorney amendments

It is worth noting that the Power of Attorney Act 2014 (Vic) (POA Act) was amended on 1 May 2017. A major change was to allow principals to appoint multiple alternative attorneys for one primary attorney or conversely appoint one alternative attorney for multiple primary attorneys.

It has also been clarified that principals can authorise an attorney to only exercise power of financial matters or only for personal matters or for both or for just what is specified in the power.

The final point to note is that previous powers will be revoked unless the principal specifies otherwise in the power.

Further amendments will also be made by the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 (Vic). New sections 83A and 83B in the POA Act provide an exception to ademption for property disposed of by an attorney. A new Division 7 grants powers to VCAT to compel production of a will, to read a will and to make available to an attorney a full or redacted copy of a will.

Energy efficiency disclosure threshold changes

The disclosure threshold for energy efficiency disclosure in commercial office space changed on 1 July 2017. Mandatory disclosure for commercial office space offered for sale, lease or sublease is now required for 1000 square metres or more. It was previously 2000 square metres.

For more information see the Australian Government website Commercial Building disclosure and see also previous articles by LPLC on energy efficiency disclosure requirements.

LPLC goes social

LPLC now has a LinkedIn page and a Twitter account to help keep you up to date on what is happening in risk management. Follow us and be the first to get the news on seminars and new material.

Risk Management Seminars

2017 Legal Business Essentials

Legal Business Essentials is a series of workshops designed to develop crucial skills and knowledge to assist practitioners build and manage a successful legal practice.

Half day $145.00 including GST | 3 CPD points

2017 Metro Series

The Metro Series are half-day seminars on risk for metropolitan Victorian lawyers. This year they will be held in November in Ringwood, Moonee Ponds, Ivanhoe and Oakleigh. Click here to read the full program and register.

To see the remaining LPLC risk management seminars for 2017 go to the Calendar of events on our website.

The complete training calendar for 2018 will be available in December to help you plan out your CPD year.

What’s new on LPLC website

New risk management seminar videos

We have posted three videos from this year’s regional risk management tour here. The topics are:

Avoiding claims in changing times – Stephen Bubb considers the changing environment legal practitioners operate in and how best to manage the risks that go with it.

Transaction traps – Matthew Rose looks at regional claims for sale and purchase of small businesses and ways to help minimise the risks.

Taxing issues – Phillip Nolan helps practitioners improve their knowledge of tax issues about duty, land tax, CGT and GST.

New key risk checklist

Conveyancing resources – this checklist gives you a range of sources to help you run your conveyancing practice well.

Updated practice risk guides

Focusing on family law

Claim free conveyancing

Small business big risk

Law Institute Journal articles

Three articles have been published since the June issue of In Check.

Risk and GST (July 2017)

PPSA claims and changes (August 2017)

Video conferencing risks (September 2017)

Risk video bites

A new series of risk video bites have been produced and one will be posted on our website on the first Friday of every month and emailed to everyone who receives In Check. The email will replace the normal Friday email for blog subscribers.

Changing your email address?

If you change your email address don’t forget to tell us so you will continue to receive all our information including insurance renewals, newsletters, emergency bulletins and seminar brochures. You have to let both LPLC and the Victorian Legal Services Board know about the change.