Jeremy Brigden - Legal Light

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LEGAL Lightwith JEREMY BRIGDEN

FROM PRIEST LEGAL

Please, Sir, I Want Some More

Freedom of testamentary disposition remains a foundational principle in our system of law. As eloquently stated by Calloway JA in the case of Grey v Harrison (1997) 2 VR 539: “It is one of the freedoms that shape our society and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit.” There are, however, limits to the freedom of testamentary disposition. In McCarthy v McCarthy [2010] NSWCA 103 Young JA said “So long as he complies with community expectations and what is sometimes called ‘moral duty’, the deceased is able to leave his property as he wishes.” It is well established law that the concept of “community standards” or “community expectations” will play a role in determining whether adequate provision has been made and, if not, what provision should be made under a will. Oliver Twist was born into a life of poverty and misfortune. Orphaned by his parents and raised in a workhouse with little food and few comforts, one day desperately in need of further sustenance he went forth trembling, bowl in hand, and begged the master for some more gruel. Imagine Mr and Mrs Twist had two sons. Imagine further that they favoured Oliver’s older brother, and considered Oliver too sickly, weak or unworthy to be deserving of anything. Imagine further still that the entirety of the Twist estate was left by the parents’ wills to the prodigal son, to the exclusion of little Oliver. It would be difficult to argue that this would be in line with community expectations. The “moral duty” of the testators in this instance must surely be to ensure, at the very least, that Oliver is sufficiently provided for. Just as Oliver has asked for “more” gruel from the master, he would be eligible to make a request for further provision from his parents’ estate. Unlike the master, however, the Courts may be more inclined to provide. Clients often ask: “Why would I make a will when it can be challenged?” The answer to that question is twofold. Firstly, if you do not make a will, you will die intestate, meaning you have no power over testamentary disposition. Oliver, in this instance, may get half of the whole pie. Secondly, you can take steps to protect your will from challenge. Advice and assistance from a competent lawyer in the drafting process can minimise the likelihood of claims, and can arm your executor(s) with a legal arsenal to assist in the successful defence of such claims, if brought. Sometimes, this may involve some [reluctant] provision for the Oliver Twists in your life in order to avoid potential claims. Note that provision need not be equal or “fair”. Such concepts do not concern the Courts. Another bowl of gruel may be adequate. Only a limited category of people are eligible to approach the Court if they feel they have been inadequately provided for, or not provided for at all. Eligible people include spouses, former spouses, children (including adopted children) and other limited categories. Eligible persons can claim even if there is no will. An executor has a duty to defend the estate and attempt to uphold the terms of the will. However, the executor must act reasonably to seek to negotiate and compromise a claim where necessary. This is particularly so if the estate is relatively small and the cost of defending the proceedings would greatly diminish the value of the estate. There are other grounds to challenge a will, beyond inadequate provision, including invalidity (such as lack of testamentary capacity) and ambiguity in construction or meaning of a will.

What to do?

See a competent lawyer to draft your will, or review your existing will, especially if you are considering disinheriting Oliver, or if you are concerned that there are any little Olivers lurking in the woodwork. If you are an appointed executor faced with a challenge on the deceased’s will, you have solemn testamentary duties as trustee. Ensure you engage a lawyer competent in the defence of Family Provision Claims. If you are an eligible person and believe you have been left inadequate provision, you may have a claim. To be successful a claim must be made within 12 months of the date of death. The lawyers at Priest Legal are highly competent at will drafting, and have extensive experience in contested will and estate proceedings.

HASTINGS’ LEADING PAINT PROTECTION SPECIALISTS!

Hi Sarah and Mitch, can you introduce yourselves and your business MS Auto Detailing to our readers?

Mitchell Hartland: business owner

I’m a 25 year old with a passion for cars. I like to go to the gym and hang out with my dogs and family in my spare time.

Sarah Carter: Mitchell’s partner

I’m 26 years old, and like spending time with my dogs and family.

MS Auto Detailing is an auto detailing business on the NSW Mid North Coast, located in Wauchope. We specialise in paint protection and interior protection, as well as offering a wide range of detailing needs, some of these include: upholstery shampoo, paint correction, machine polishing, waxes, interior cleans, prams and baby seats.

You name it we do it.

How long have you owned and operated the business for?

We have owned and operated MS Auto Detailing now for 3 years. We started our journey in Wingham/Taree but provided a mobile service over the whole Mid North Coast. We then had an opportunity to expand here in Port Macquarie/Wauchope. We have been in the area for over a year now.

How did MS Auto Detailing begin?

It all started with our own cars, then we started doing family/ friends on the side of our other day jobs. Word started to spread and we both decided to leave our jobs and follow our passion for cars.

Tell us about a typical day on the job?

Transforming cars into something new and clean, it gives us satisfaction. Our main focus is to provide a quality experience for all our customers. It brings both of us joy to work on cars.

Do you have a plan or goal moving into 2022 for how you wish to run or expand the business?

We don’t really have a goal yet for 2022 as we have achieved so much in the short time we have been here. We are hoping to expand and learn

Transforming a few new things cars into into this year and something new and hopefully open clean, it gives us longer hours and satisfaction. Our days so we can fit main focus is to in more customers’ provide a quality experience for all cars. How can our readers find out our customers. more or book in

with you?

Readers can find out more by messaging us on Instagram or Facebook, calling us on 0459 535 228 or come and see us at 49 Production Drive, Wauchope. MS Auto Detailing – the Hastings’ leading paint protection specialists! The only choice.

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BUSINESS MINDS

with LAUREN MCALLISTER AND SIMON BANK

FROM WEBSTUDIO

Following your passion - the key to a successful side hustle

The side hustle is often seen as the fun, exciting venture you have the freedom to do at your own pace. But exactly what does it take to run a small business, while managing a full time job? We sat down with Joshua Moses – Sales and Marketing Manager for Häuslein Tiny House Co by day – with his own business as a professional photographer.

What does your role with Häuslein Tiny

House Co involve? I manage the customer journey from the first point of interaction – from our website/socials – all the way to logistics of delivery and installation. A typical day for me is fielding new leads, sorting out delivery estimates, quotes and contracts, answering questions about the finer details of living tiny and updating buyers. It’s a great place to work and the team is amazing.

What made you start your side hustle as

a professional photographer? It started in 2008 when I lived with some fellas that were into the same hobbies, so we turned them into side-hustles. I started shooting for events, took a course and was fortunate to be a second photographer for some established agencies in Sydney. We leveraged our connections and shared the benefits of old school face-to-face networking which serendipitously we were all good at. I realised quickly that I loved the pace, meeting people on the job, and the opportunity to be paid for creativity!

Is your motivation to run a side hustle driven by a desire for extra cash, or

pursuing passion? The extra cash is great, but honestly it’s equal parts pursuing passion and networking. I consider it fun being able to provide value while making friends and professional contacts. It’s led to me living in Southern Asia for two years, shooting architecture and facade lighting on high-rise buildings in Sydney, fashion, retail, events, motorsport and fine dining. Every time I’ve changed my day job I’ve changed industry. It comes down to my desire to keep learning new things. It’s the same with having a side-hustle. It adds seasoning to life that I am totally addicted to.

What is the key to running a successful

side hustle? You have to love your main gig as much as your side hustle. I love my day job; it’s a joy to go to work literally every day. Having a great base-employment creates a balance of motivation for side-hustle vs main income. I think the very nature of a side-hustle is about unhinging that part of your personality that being wholly ‘career driven’ often inspires you to push to the recesses of your mind. When we start our careers it’s often a myopic environment that society says to go all-in on. You can definitely go all-in on both – but only if you love your work. I feel that’s when you’re living the best life; happy with your sense of purpose. I don’t consider myself financially wealthy, but I do consider myself wealthy in the enjoyment of life.

How do you manage work/life balance?

Quality time with my wife and kids is paramount. I find in regional spaces there is an acceptance of flexibility due to the lifestyle we came here for. I’ve been able to structure my day-job to allow for school pickups, afternoon hangouts with my kids and I do my best to leave photoshoots to nights or weekends. Also, I do reject jobs if I’m too busy! I consider myself young-ish and have the rest of my life to pursue financial stability, release creativity and continue loving my wife, but our time with growing children is limited. We’re not the type of parents to take our kids somewhere and spectate, we like getting involved. We’re lucky our amazing local cafe culture helps fill the gaps of energy levels.

What is your advice to someone

considering a side hustle? Nothing good comes from rushing, and inversely, the greater time input yields greater reward. Thinking long-term forces you to prepare your actions for that and allows for realistic timelines and avoiding emotional turbulence. Oh – and the greatest value (side-hustle or not) you can have professionally is your network. Surround yourself with who you want to become!