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wills and estates

What does an executor do ?
An executor is one or more persons who you have appointed to carry your will into effect. An executor is required to carry out duties such as collecting all the assets and having them valued, pay any outstanding debts, arrange tax returns, arrange the funeral, apply for a grant of probate and distribute the estate according to the Will.

An executor must be over 18 at the time they apply for probate, if probate is required.
What happens if someone dies without a Will ?
If there is no will, the law decides how your estate is distributed. This is called dying ‘intestate’. If there is no valid will an application must be made for ‘letters of administration’. This will allow the nominated person in the letters of administration to act similar to an executor, with authority to distribute the estate. However this distribution must be in accordance with the law and may not necessarily be as you wish. It is an expense that can easily be avoided by taking the time to draft a valid will.

How do I change or cancel my Will ?
It is important to update your will frequently to avoid any future problems. You can change your will as often as your like. We recommend updating your will every three or so years, or as a major events occur in your life.

In addition, you will be required to make a new will if you:

Marry or remarry as marriage revokes any pre-existing will;
Divorce or separate;
Purchase a significant asset/investment; or
Get involved in a new business, company or trust.
Can my Will be challenged ?
It is possible for others to challenge your will after you die in circumstances where it appears that:

You did not have testamentary capacity to make a will at the time of signing;
You were coerced, influenced or intimidated into making the will;
Your financial dependent, or a person who you have a ‘responsibility’ to provide for, believes that you have not adequately provided for them fairly in distributing your assets. Where a person does not sufficiently provide for their dependents, they may make a testator’s family maintenance claim and challenge the will. In determining the application, the court will consider the applicant’s personal circumstances, size of the estate and the applicant’s relationship with the Will maker.

It is important that if you are concerned someone may challenge your will after you pass away, or if you are seeking to challenge a will that you obtain legal advice as soon as possible. Contact our office to make an appointment today.

Powers of attorney and guardianship ?
Powers of attorney and guardianship are commonly referred to as ‘living wills’, documents that allow decisions to be made that take into account your wishes, if you are not able to make such decisions for yourself any longer. Although you can nominate whenever you want your attorney’s power will commence, it is common for people to elect that the power commences when they have lost the capacity themselves to make decisions, because of a serious car accident or dementia for example. There are different types of Power’s of Attorney:

A general power of attorney: these types of powers usually only take effect during a prescribed period or limited time such as when someone is away on holidays. The can enable the donee to make financial or legal decisions on your behalf.
An enduring power of attorney: Commonly referred to as the financial power of attorney, this enables someone to make financial and legal decisions on your behalf, such as signing a legal document, selling property or doing your banking if you are unable to make these decisions in the future.
An enduring power of attorney – medical: This power of attorney enables someone to make medical decisions on your behalf, such as agreeing to or refusing surgery, if you are unable to make these decisions for yourself in the future. This type of attorney can be responsible for making end of life decisions, and it is important you carefully consider who you feel appropriate to make these decisions on your behalf.

An enduring power of guardianship: this allows you to appoint someone to make day-to-day lifestyle decisions on our behalf, such as where you live and health care issues if you are unable to make these decisions for yourself in the future.

You may appoint one or more decision maker when appointing an attorney. It is important to appoint people who you trust and are satisfied about their honesty, integrity and common sense. If you decide to appoint more than one person, you can choose whether they must act:

Jointly, which will require each attorney’s signature for every transaction and complete consensus; orJointly and severally, which allows each attorney to make decisions on their own as well as together. This will also mean that a transaction can be completed with one signature as opposed to requiring everyone’s signature
What happens if l do not have a power of attorney ?
If you do not have a Power of Attorney and you become unable to make your own decisions due to accident or illness, your family will be required to seek permission or authority from the Guardianship Board to make these decisions for you. This can result in a third party, such as the Public Trustee, being appointed to act on your behalf rather than a family member
Administering estates
If you have been appointed the executor of a Will, then you are responsible for carrying out the wishes of the deceased.

At Herman Bersee Solicitors we often assist executors and administrators navigate the application process for grants of probate, letters of administration, and your obligations when acting. We are also experienced in conducting the administration of the estate on an executor or administrators’ behalf to reduce the stress and streamline the process.

An executor is one or more persons who have been appointed to carry a will into effect. An executor is required to carry out duties such as collecting all the assets and having them valued, pay any outstanding debts, arrange tax returns, arrange the funeral, apply for a grant of probate and distribute the estate according to the Will.

An executor must be over 18 at the time they apply for probate, if it is required.
What is a grant of probate ?
This is a fancy term for the recognition or ‘seal of approval’ you must obtain as an executor that you are authorized by the valid Will to act as executor and distribute the estate. It is the proof that you require to deal with the deceased’s assets, conduct transactions such as the sale of a property or access the deceased’s bank accounts.

Whether probate is required varies greatly depending on the particular assets and size of the deceased’s estate. It is best that you obtain detailed legal advice as to whether you require a grant of probate as soon as possible, to avoid undue delay down the track.
What if there is no Will ?
If there is no will, the law decides how the estate is to be distributed. This is called dying ‘intestate’. If there is no valid will, an application must be made for ‘letters of administration’, rather than a grant of probate. This will allow the nominated person (‘administrator’) in the letters of administration to act similar to an executor, with authority to distribute the estate. However the administrator must distribute the estate accordingly to the law rather than deceased’s personal wishes.
Estate Disputes
There are three keys issues which commonly arise is disputes about estates. These are:

Where there are suspicions or allegations that the will does not reflect the wishes of the deceased;
Where a financial dependent or a person who you have a ‘responsibility’ to provide for, believes that you have not adequately provided for them fairly in distributing your assets;
Where there is no will and a dispute about what the deceased wanted.

Time and time again at Herman Bersee we deal with estate disputes which could have been avoided had the deceased made a valid, clear and conscise will prior to their death. This can cause a lot of stress and heartache for loved ones, who should be grieving. We therefore take the time to understand what it is you want to achieve when distributing your assets, and explain to you the options and ways in which this can best be achieved and how to best mitigate the risk that your will could be challenged.

If you wish to challenge a will, the first step is to conduct an assessment about the prospects for success of your case. The second step is to attempt to resolve the matter in a cost effective and efficient manner, usually through negotiations. However, should negotiations be unsuccessful, at Herman Bersee we have the experience to take your matter through the Court system to achieve the best result for you
When must a claim be made ?
When must a claim be made?
A claim against an estate must be made within six months of probate being granted. As time is of the essence, should you wish to challenge an estate, it is important that you obtain sound, practical and efficient legal advice as soon as possible. Please call Herman Bersee Solicitors today to make an appointment.
Can I prepare my Will online?
At Bersee Legal, you can begin the estate planning process online at a time and place that suits you. One of our expert estate planning lawyers will then speak with you to ensure that a Will is drafted that achieves all of your objectives.
Click here to get started online.

criminal and police matters

What are the courts of South Australia ?
In South Australia, three Courts hear criminal cases:

Magistrates Court
District Court
Supreme Court

The Court your case will be heard in will depend on the charges laid against you.

Traffic Law

Traffic Law is a complex area and matters can range from drink driving to death by dangerous driving. At Herman Bersee Solicitors we take pride in our attention to detail in these matters, which sets us apart from our peers.

If you are in doubt about whether you will need a lawyer for your traffic matter contact one of our friendly staff and we can advise you on how we may assist you to obtain the best outcome possible. For example, if you have been charged with an offence for which there is a mandatory minimum penalty stipulated by the law, we can assist you by ensuring you receive a penalty as close to that minimum as possible. This is often the case is drink driving or drug driving matters.

Summary Offences

If you are charged with a summary offence you will appear before a Magistrate in the Magistrates Court. Police prosecutors have conduct of these matters. Summary Offences include charges such as minor traffic offences, basic assault, basic property damage and disorderly or offensive behavior.

Minor Indictable Offences

If you are charged with a minor indictable offence you will initially appear before a Magistrate in the Magistrates Court. However if you wish to plead not guilty you may elect to be tried in the District Court by a jury. This is an important decision and you should consult one of our experienced Criminal Law Solicitors if you have been charged with a minor indictable offence. These offences include charges such as gross indecency, aggravated assault and serious criminal trespass.

Major Indictable Offences

If you are charged with a major indictable offence you will initially appear before a Magistrate in the Magistrates Court for the committal process. The Department of Public Prosecution has conduct of these matters. The committal process is where the Magistrate conducts a preliminary examination to determine if there is sufficient evidence to put you on Trial in a higher court. If there is enough evidence, the Defendant is committed to the District or Supreme Court to stand Trial. These offences are the most serious offences such as murder, rape, serious drug trafficking or robbery.

It is during the committal process that your solicitor will attempt to negotiate with the DPP. The committal process is made up of two important events:

Declarations Date – This is when the Department of Public Prosecutions must file with the Court all of the evidence that they seek to rely upon. A copy of all Declarations filed will also be provided to you.
Answer Charge Date – This is the date in which you enter a plea of Guilty or Not Guilty. After you have entered a plea at the Answer Charge date you are committed to the District Court or Supreme Court for Arraignment.

Arraignment is the date where you are formally accepted into the higher Court by entering a plea of Guilty or not Guilty before a Judge in the District Court or Supreme Court. If you enter a plea of Guilty your matter will be listed for submissions and if you enter a plea of Not Guilty your matter will be listed for Trial in front of a jury or Judge.
What are my Arrest Rights ?
Police can arrest anybody if they have reasonable belief that they are suspected of committing an offence or is suspected to be about to commit an offence. The arresting officer must make it clear to you by words and actions that you are under arrest and tell you your rights. If you are arrested you should seek legal advice immediately. Generally after you are arrested you will be taken to the nearest police station and charged.

Unless you are specifically excluded from bail then you are entitled to apply for bail. In Australia there remains a presumption in favor of bail and a presumption of innocence until proven guilty. You should be aware however, that the presumption in favor of bail has been eroded in recent times, so that for certain types of offences, for example if you have been charged with committing an offence whilst already on bail, there is a legal presumption against you being granted bail.
What do I do if I am Arrested ?
If the police request your name and address you must provide the police with this information. It is an offence to provide false details or refuse to provide your details.

You must not resist arrest. It is an offence to resist to resist arrest or hinder police in attempting to arrest you. In these circumstances you could also be charged with assaulting police if your behavior is overtly aggressive toward arresting police officers.

Usually the best course of conduct is to sit tight and contact professional advice once you have been arrested. Often your words and actions immediately once you have been arrested are critical in whether police are able to prove the charges laid against you.
What will happen after I am Arrested ?
(Applying for release on bail)

Once you have been arrested it will be up to the police whether you are granted bail immediately. If you are not granted bail you must be bought before the Magistrates Court as soon as possible to make an application for bail.

In determining whether you get back police and Courts consider:

The seriousness of the charge.
The likelihood of you not appearing in Court.
The likelihood of you committing further offences whilst on bail.
Your background and family.
Your ties with the community in your local area.
What should I do if I am refused Bail ?
If you are refused police bail please advise the police or Court staff that you would like an opportunity to speak with someone from Herman Bersee Solicitors. They will then contact us and we can make arrangements to appear on your behalf to make a bail application in the Magistrates Court.

If you are refused Court bail it is also possible to appeal this decision in the Supreme Court. The success of any Supreme Court appeal will depend upon a number of factors.
Our approach to Bail Applications ?
Because it is more difficult to get bail after bail has been refused, we believe that an application for bail should not be made unless you and our solicitors are thoroughly prepared. This may involve adjourning your matter until Affidavit evidence is taken to prove employment or hardship, valuation and bank approvals are obtained and acceptable people are available to deposit cash or security. Due to our vast experience in this area we are able to gather all of this evidence in a short period of time.
What happens if I don’t comply with my Bail Conditions ?
It is an offence to breach your bail agreement. If you are suspected of breaching your bail agreement the police have the right to arrest you. Where you commit a further offence whilst on bail there is in circumstances a presumption against the police or the Court granting you bail again. If you are arrested for breaching your bail although you may reapply for bail the chance of police or the Court granting you bail for that offence is much lower.
Can I vary my Bail Conditions ?
If you are on police bail and you have not yet attended Court then you can vary your bail by attending at the police station where you were arrested and explain what you want to vary and why. If you were granted bail by the Court or your matter has been before the Court on at least one occasion you will need to apply to the Court to vary your bail. You will need to explain what variation you want and why to the Court.
What are Alternative Sentencing Courts ?
In the Magistrates Court there are a number of initiatives know as diversion or alternative sentencing Courts. These Courts are designed to address specific types of offending or specific defendant characteristics tailored to rehabilitating offenders.

In total the South Australian Magistrates Court has four diversions Courts namely the Nunga Court, Family Violence Court, Drug Court and Mental Health Diversion Court. In the South East Area and Limestone Coast Area Defendants are able to access the Nunga Court and Mental Health Diversion Court through the Mount Gambier Magistrates Court.

Nunga Court

The Nunga Court is an initiative to sentence Aboriginal Offenders who have entered a plea of Guilty to an offence. An Aboriginal justice officer or senior Aboriginal elders attend the sitting to advise on cultural or community matters. In addition to the Defendant, the Defendant’s family, community members or the victim have a chance to attend and speak to the Magistrate about issues which may assist the Magistrate in sentencing the Defendant.

Mental Health Diversion Court

The Mental Health Diversion Program is designed to assist Defendants where there is a link between there offending behaviors and impaired intellectual or mental functioning arising from:

mental illness
intellectual disability
a personality disorder
acquired brain injury
neurological disorder
The Mental Health Diversion Program takes approximately 6 months and enables participants to voluntarily address their mental health and disability or offending behavior. The program assists individuals with information and referrals about services which may be of assistance in their local area. During the program, the Magistrate will review the individual’s progress.

At the conclusion of 6 months the Magistrate will hand down a sentence for the offence, taking into account the individual’s level of involvement and progress in the program. This can result in a better sentencing outcome than an individual may otherwise attain in the mainstream Magistrates Court procedures.

family law

Can you help me get divorced ?
At Herman Bersee Solicitors we have experience preparing and advising clients through the divorce process. We are able to offer a holistic approach to your separation, as our experienced solicitors can also advise you in relation to children’s’ issues and property settlements.

In Australia, you can obtain a divorce in either the Family Court of Australia of the Federal Magistrates Court of Australia. The Family Law Courts website also has information to assist you understand the Family Law process. Click here to read more.

To obtain a divorce there are several requirements you must satisfy:

You must be able to prove a valid marriage. This can usually be done by proof of a marriage certificate. If you require a translation of your marriage certificate, please contact Herman Bersee Solicitors to arrange this on your behalf.

You must be able to prove the Australian Family Courts have jurisdiction. This can usually be done by proof of one of the follows factors:

Regards Australia as home;
Intends to live in Australia indefinitely;
Has lived his or her whole life in Australia;
Is an Australian citizen; or
Ordinarily lives in Australia and has lived in Australia for the 12 months prior to the making of the application for divorce.
You must be able to prove that the relationship has broken down irretrievably. The Court usually requires a separation period of at least 12 months immediately prior to the filing of the divorce application to prove this is the case.

The Court will not grant a divorce unless appropriate care arrangements for any children of the relationship are in place. This does not mean that those arrangements must be formalised, or that the parties are in agreeance, but rather that at the time of the hearing, there are arrangements in place to ensure the children are being appropriately cared for.
Can I obtain a divorce myself ?
Given that the divorce process is quite straight forward, if you are able to satisfy the above criteria, we would invite you to make an application on your own behalf unless you would prefer for us to make the Application on your behalf. At Herman Bersee we would like to assist you in any way possible, however we feel it important that as your legal advisors we should make you fully aware of every opportunity to save money.
Childrens’ Arrangements and Custody Disputes ?
Often when a relationship breaks down, there need to be quick and effective arrangements out in place in relation to the care of children. The Family Law Act 1975 (Commonwealth) outlines how Australian Family Law and the Family Law Courts deal with children’s issues. The law covers issues relating to child custody arrangements, residence of children and ongoing financial support of children.
What must I do before I can apply for Parenting Orders ?
Family Law tries to encourage parties to sort out arrangements for their children without court intervention. When applications for parenting orders are filed with any of the Family Courts, both parties must have attempted “pre-action procedures” which include family dispute resolution. Generally, the court will require a certificate from an accredited family dispute resolution practitioner before an application for parenting orders can be filed with the court.

These pre-action procedures are a requirement except in circumstances where there is family violence, child abuse or urgency.

At Herman Bersee Solicitors we are committed to assisting you navigate the pre-action procedures outside of court as well as representing you in court. If you are able to reach a settlement out of court can save you and more importantly your family considerable money, time, stress and emotional hardship.
Applying for Parenting Orders ?
Parenting orders are legally binding arrangements which can cover the following:

Parental Responsibility and decision-making responsibilities
With whom a child will live
The amount of time with which a child will be allowed to spend or communicate with each parent
Child maintenance orders (although these are now generally covered by the Child Support Scheme and are less frequent)
An Application to the Family Courts can be made by any person concerned with the care and welfare of the child/ren. This can include parents, grandparents or other significant persons in a child’s life
How does the court decide Children's Orders ?
The Family Law Act 1975 (Commonwealth) provides that the court has a duty to make orders in the best interests of the children. When considering what is in the best interests of the children, the court has two primary consideration and several additional considerations.

The primary considerations are:

To facilitate a meaningful relationship between the children and both of their parents; and,
To protect the children from harm.
The additional consideration are:
The views expressed by the child taking into account the child’s maturity and understanding
The nature of the relationship of the child with the parents; and other persons (including grandparents)
The willingness of the parents to encourage a relationship between children and the other parent
The effects of the proposed changes on the child’s circumstances including separation from parents; or any other child or person they have been living with
The practicality and expense of communication and affect on relationships it may have
The capacity of the parents and other persons to provide for the child’s needs
The maturity, sex, lifestyle and background of the children and their parents
If the child is Aboriginal or Torres Strait Islander, the right to enjoy their culture with others who share it
The attitude of the parents to parenting
Family violence
Family violence orders
Orders that are likely to resolve issues rather than create further recourse to litigation
Other factors the court deems relevant
I want to re-locate with my children? What should I do ?
If you wish to relocate with your child and this will impact the nature of the relationship between your child and your former partner, an application can be made to the Court seeking the Court’s permission that you be allowed to relocate with the children.

The application should be made prior to you relocating, or where your former partner has relocated with the children and without your knowledge, as soon as you are aware of the relocation.

What will I need to include in my relocation application?

Relocation cases are emotionally difficult for all parties involved and ultimately the Court will need to resolve the dispute of each parties’ respective competing proposals and arrive at a decision which is in line with the best interests of the child.

At Herman Bersee we have experience in dealing with relocation orders. You application will need to explain how your proposal is in the best interests of the child. You will need to address the following issues:

Why the proposal is more suitable than the current arrangements;
Evidence of proposed schooling arrangements, housing arrangements etc; and
Additional factors including relationships with significant people, views of the child etc.
Arrangements that facilitate a meaningful relationship between the child and both parents;
Costs of travel, travel arrangements (including accompanying on flights if applicable);
Communications and technological applications – eg. Skype and requisite equipment.
Property Disputes and Financial Agreements<br>
At Herman Bersee Solicitors, we are experienced in family law property matters. We pride ourselves on offering valuable assistance in determining how income, financial resources and debts are divided between you and your former spouse.
When should I start thinking about Property Issues ?
It is important that you consider property issues not only after divorce, but also if you are separated or even considering separating. This is often an emotional and uncertain period, and short-term arrangements can have very long-term consequences. At Herman Bersee we are committed to assisting you in the short-term but also the long-term with regards to you and your family’s property.
What types of property matters should I consider after my relationship has broken down ?
There are many issues you must consider if you are considering or have separated from your former partner. These include:

How to divide assets such as real estate ( matrimonial / family home and any investment property ), shares, cars, jewellery, savings, furniture and effects (property / divorce settlement),
How to split superannuation,
Whether one spouse will provide financial support for the other,
What arrangements will be made in regards to the financial support of the children (child support)

What must I do before applying for Property Orders ?
Family Law tries to encourage parties to sort out arrangements for their property issues without court intervention. When applications for parenting orders are filed with any of the Family Courts, both parties must have attempted “pre-action procedures”.

These pre-action procedures are a requirement except in circumstances where there is urgency.

At Herman Bersee Solicitors we are committed to assisting you navigate the pre-action procedures outside of court as well as representing you in court. If you are able to reach a settlement out of court can save you and more importantly your family considerable money, time, stress and emotional hardship.
How long do I have to apply for property orders ?
There are strict time frames within which you must apply for property orders. Usually an application must be made within 2 years of separation or 12 month of a divorce. It is important that you obtain quality legal advice as soon as possible to ensure that you comply with any limitation period which may apply to you.
What if we can agree about property issues ?
At Herman Bersee Solicitors we are committed to assisting you navigate the pre-action procedures outside of court as well as representing you in court. If you are able to reach a settlement out of court can save you and more importantly your family considerable money, time, stress and emotional hardship.

There are two way that your agreement can be formalised. These are:

Financial Agreement
Consent Orders

Financial Agreements

A financial agreement is similar to the notorious pre-nuptial agreement, but are signed before, during or after a marriage.

For financial agreement to be legally binding, both parties must have signed the agreement and have received independent legal and financial advice before signing.

At Herman Bersee Solicitors we have vast experience negotiating, drafting and inspecting binding financial agreements. Please contact our friendly staff if you wish to discuss the process further.

Consent Orders

Consent orders are a written agreement between the parties that is approved by the Court and therefore legally binding. The Court must be satisfied that the orders are properly drafted and that the terms of the agreement are “just and equitable” before it will approve them.

Deciding whether a financial agreement or consent order is right for you can be a confusing process. If you would like further information and a realistic discussion about the advantages and disadvantages about each of these options, please contact Herman Bersee today.
How does the court decide property issues ?
In all property settlements there is a four step process which is followed by the Courts:

Step 1 – Creating an asset pool

To create the net asset pool all assets and liabilities of your relationship will need to be identified. These include personal assets and liabilities. It is essential that you tell Herman Bersee Solicitors all of your assets and liabilities to ensure that proceedings are fair. If you hide or do not advise us of your assets you may be found in contempt of court.

Assets are the things you own that have a value. Assets could include:

Liabilities can be seen as debts, where money is owed. Examples of liabilities include:
Car loans
Credit card balance
The net asset pool figure will then be calculated. The net asset pool is generally calculated using this formula Total Assets – Total Liabilities = Net Asset Pool. The net asset pool figure is the amount of money that will be divided.

If both parties cannot agree on a value of an item/s, for example a car, an expert will need to brought in to value the item.

Step 2 – Each Party’s Contribution

The court looks at how each party contributed to the relationship. The court has broken the contributions into four specific groups:

Non Financial Contributions

1. Financial Contributions

Financial Contributions is all monetary contributions to the relationship and can include but is not limited to:

Amount of money each person had at the start of the relationship
Termination money
Lotto winnings
Once the financial contributions to the relationship has been identified, the court will look at which parties made contributions and when. It is essential that all information is disclosed to your representation, the other party and the court.

The court will only look at where the money in the relationship is being spent if there are allegations of wastage. Wastage is when a considerable amount of money is being used for the following:

A considerable amount of money will be determined on the weekly combined wage of the parties to the relationship. As a rule of thumb, 10% of the wage spent on any of the above is seen by the court as wastage.

2. Parenting Contributions

These contributions could be described as the amount of parenting that was done, such as helping children with homework, taking them to school, spending time with them etc. There is no specified amount, however when one party works and the other cannot due to parental responsibility, it is seen as an equal contribution to the wage that the other party contributes to the relationship.

The Court is not concerned with the quality of parenting performed by the person claiming to be the main contributor to the parental responsibilities in the relationship. The availability of the parent claiming to have made the significant contribution is essential in determining the contribution percentage.

If the parents have made parental help for example hiring a nanny this will often be considered as a factor in discounting the amount of parental contributions provided by the party.

3. Homemaker Contributions

These are the contributions made to the home for example vacuuming, cooking, washing etc. Homemaker contributions are very similar to parenting contributions.

The domestic duties performed in the relationship are considered as the homemaker contributions. When the Court looks at this contribution it is not concerned with the quality of the duties performed for example I vacuumed every day, but rather the fact that they were performed and who performed them.

When considering this contribution the main factors are whether or not the domestic duties were full or part-time concerned of the party who performed them and whether or not the parties made use of domestic help for example lawn mowing, cleaning lady, ironing lady. The use of domestic help whether it was paid of performed by a family member is often a factor in discounting the amount of domestic contributions provided by the person claiming that it was their responsibility.

Step 3 – Identifying Needs

During a property settlement, current and future needs will be taken into account. The following is a list of the needs that the court will look at:

State of health
Income, property and financial resources
Physical and mental capacity to gain employment
Parent or sole carer under the age of 18
Commitments that are necessary to provide for themselves or a child
Responsibilities of either party to support another person
All parties are living a reasonable standard of living
Duration of the marriage
The maintenance of the property that affected the earning capacity of a party
The need to protect a party
Once the appropriate needs of each party have been identified the court will then look at the cost of each of these needs.

Step 4 – Who Gets What and Is It Just and Equitable

Once the splitting percentage of the asset pool has been decided it will then be determined what assets each person gets. In some cases the asset that the person obtains is over their percentage and they will need to pay the other person in order to keep with the percentages.

The final step in determining a property settlement is to assess if the settlement is just and equitable. The court will assess this by looking at:

The contributions to the relationship made by both parties and
The current and future needs of both parties.
The purpose of this final step is to determine whether the proposed settlement is fair, taking into account the above, to both parties.

Should I obtain valuations ?
Where assets and liabilities of your relationship can be agreed or accurately valued, you should do so. This may include exchanging market appraisals or online valuation services to assist the process.

Where parties are unable to agree to the value of any asset/s, the Court may appoint a valuer to do so and you may be required to share the costs of obtaining that valuation report.

You should be aware that all assets are valued at their second-hand value obtainable in the market, not necessarily their current replacement costs.

victims of crime

What can I obtain compensation for ?
The victims of crime compensation act is available to victims who have suffered physical or emotional injury as a result of their experience. The scheme is not available to victims of stolen or damaged property. However, if you have been the victim of a crime and had property stolen or damaged contact Herman Bersee Solicitors to discuss your other options to recover this loss.

The compensation fund is a last resort remedy. This means that if you have other means of obtaining compensation, through insurance claims, civil suits or other government schemes such as Workcover, you should utilise these options. This is why it is important to speak to solicitor with vast experience in these types of claims because we can identify all of your options available to you.
How much compensation will I receive ?
The amount of compensation you may receive depends upon a number of factors including the nature and seriousness of your injuries, the circumstances surrounding the offence and what steps you have taken to minimise your loss as a result of your injuries.

For a claim arising from an injury after the 1st September 1990, there is a maximum award rate of $50,000. However, the actual amount of compensation you will receive will be scaled depending on the circumstances of your injuries. An actual award of $50,000 is reserved for the most serious of injuries such as death.
Are there costs associated with making an application ?
The compensation scheme is designed so that you have no out-of-pocket expenses. Generally, all medical, psychological and other like reports are paid for by the scheme.

The fund also pays for your legal expenses associated with making a claim. This payment is made separate from any amount of compensation you are awarded.
How long does the application process take ?
At Herman Bersee we can take the stress and work out of making a victims of crime application. During your first interview we will gather all of the information needed to make your application. We can follow up on your behalf if any further details are required such as police report numbers. Once the Crown Solicitors Office receive your application, they may require you to obtain further medical or psychological reports to verify your injury. This is a simple process and will not cost you any out-of-pocket expenses. From there, we will enter negotiations with the Crown regarding your payment.

Generally making a victims of crime application will take 12 months. However this will depend upon the complexity of your matter and nature of your injuries.
What if I was injured whilst travelling in South Australia from interstate ?
Generally, it does not matter where you reside when making a victims of crime compensation claim. However it is required that you were injured whilst in South Australia, i.e. that the crime was committed in South Australia.

Similarly, if you are a South Australian resident who has been injured as a result of a crime interstate you may be entitled to victims of crime compensation in that state. All Australian jurisdictions have their own version of the Victims of Crime scheme, although the actual terms, amounts and process vary slightly. At Herman Bersee we have assisted South Australian residents make claims interstate before, and we would be happy to speak with you about the options available to you.

civil litigation

What are the costs of Civil Litigation ?
What are the costs of Civil Litigation?
The most difficult issue to nail in civil litigation is its cost. This is because costs are heavily determined by the complexity and duration of your matter. However at Herman Bersee we do offer fixed prices for letters of advice, letters of demand, summonses, bankruptcy notices and winding up notices.

For a costs estimate tailored to your specific circumstances, please contact our staff today.

At Herman Bersee we are committed to minimizing your legal expenses wherever possible. A large problem in litigation is over servicing by lawyers. Cost effectiveness in civil litigation arises from experience. Our best practice ethics dictate that there must be prompt assessment of tasks and having the right staff to do them. That is why at Herman Bersee we are not only proud of our solicitor’s experience, but also our reputable team of law clerks, secretaries and other office staff. Many litigation tasks can and should be performed by qualified staff at lower hourly rates than solicitors. This in turn will save you costs wherever possible
Are my legal costs recoverable ?
If you are successful at Court, you may be able to recover some legal expenses. However it is important to remember that often an order for costs is capped at a scale, such at the Supreme Court Scale of Costs. These costs will not usually cover the legal costs that you may have incurred and can range between 55% and 70% of your actual costs incurred
What is Litigation ?
Litigation is the process of settling a dispute in Court. Some disputes can be settled our of court, however some cannot. Some cases settle by agreement before a judge, and other which cannot be resolved proceed all the way to trial. Parties to a case may be individuals or companies or a combination of both.

To start a law suit, one party called the plaintiff sues another party called the defendant. This is don’t by filing a complaint and paying a filing fee. The filing fee varies depending on the court the matter is to be heard in. The defendant must then be served with a summons to come to court. The defendant will then usually file an answer to the complaint called a response or defense. The defendant may also counter sue the plaintiff. The parties then begin a process called discovery, which is a series of legal tools to get information from the other party. For example, if a plaintiff is suing for payment of an outstanding debt, the plaintiff may be able to use the process of discovery to access documents held by the defendant confirming the debt. The Court manages the progression of these steps.

To find out more about the court process please see the Courts Administration Authority website

I have been served a summons, what do I do ?
If you have been served with a summons it is important that you seek experienced legal advice from Herman Bersee Solicitors. These matters need to be dealt with expeditiously and effectively, to ensure that your legal expenses are kept to a minimum.
Are there other ways to resolve my case ?
If a matter has not yet reached Court there are several alternative dispute resolution processes which parties may access to resolve a dispute without court intervention. One of the most common processes is through mediation. A mediation is chaired by a mediator, someone who is an independent third party, who guides the parties through a structured negotiation process. If an agreement is reached at mediation, this can be converted into a formal contract which is binding and legally enforceable against each party.

Even if a matter is in the Court processes, it can be settled by agreement between the parties. This is sometimes done through informal settlement conference between the parties and their lawyers, or through more formal mediation sessions as well as the Court’s pre-trial process which include conciliation conferences and the like. Usually, attempts to settle a case between parties may and do commonly occur right up until the trial has started.
Need help?
Contact us today to find out what we can do to help you with your legal matters.