Without a validly executed will, your wishes on where your assets go will not be met upon your death. Having a will ensure that your assets go to the right persons and that your family is taken care of when you die.

What is the legal age to do a Will?

You need to be at least eighteen (18) years old to sign a valid will.

What is a Will?

A will is written legal document with your instructions on how you wish to have your assets distributed upon your death. Your will can include all the assets held in your personal name, including your house, land, car, shares and bank account. However, your will not cover your life insurance and superannuation.

In your will, you need to appoint Executors (s) to administer your estate. You should choose your executor carefully as your executor will have to make important decisions which often require financial and legal knowledge.

It is important that a will is validly written and signed to ensure that your assets will go to the right persons of your choice.

What happens if I don’t make a will?

If you die without a valid will, you are said to have died intestate. This means that your property will be distributed according to the formula given by the laws of intestacy.

Dying intestate will have the following disadvantages:

• The financial future of your children and other family members may not be protected
• Your assets may be given to the government if you have no relatives
• There may be a forced sale of your home to pay off your debts
• There may be a claim by unwanted beneficiaries
• Your estate may will be managed by someone appointed by the Court, and not a person of your choice.

What are the rules of intestacy in Queensland?

There are rules of intestacy in Queensland governing the distribution of an estate without a valid will.

The order of distribution is as follows:

•  Where there is a surviving spouse or issue (children and/or grandchildren): spouse and issue
• Where there is no surviving spouse or issue: parents; siblings, nephews and nieces; grandparents; uncles and aunts and first cousins; then the Crown.

How is an Intestate estate distributed in Queensland?

• If the person is married with no children, then the whole estate is given to the spouse.
• If the person is married with children, then, the spouse gets $150,000 plus household chattels, plus ½ of the balance of the estate (where there is one child) or 1/3 of the balance of the estate (where there is more than one child) and the child or children receives the balance of the estate.
• If there is only one (1) child, the child takes the whole estate.
• If there are two (2) or more children, they take the whole estate in equal shares.

Change of Circumstances

You should review your will often to make sure your will still reflects your current wishes.
Your will is automatically revoked when you get married (unless your will is made in contemplation of marriage) or divorced.

Don’t put off preparing your Will

People often delay preparing their will until it is too late. The best way to make sure that your assets are properly distributed is to make a valid will and update your will often (especially when there is a change of circumstances).

The first launch in Australia took place in Victoria, with the first successful discharge of mortgage being completed on Tuesday, 18 June 2013 by the

This online transcation which was carried out by the Commonwealth Bank of Australia will be followed by other banks and financial institutions, who will be registering mortgages, discharge of mortgages online.

According to the CEO of NECDL, Marcus Price, “This is an incredibly important milestone for PEXA on its way to creating a truly national property exchange….It’s the first in a sequence of installations planned for the next 12 months with our focus now on bringing the New South Wales, Queensland and Western Australian Land Registries and remaining major banks on board.”

The most risky aspect of purchasing off the plan property is that you will be buying an unseen property. Further, off the plan contracts cannot be cancelled just because the purchaser changes his mind. The contract becomes binding and enforceable once both parties have signed it.

The purchaser will have to rely on the information disclosed by the vendor and the contract itself.

Below are some the more important risks you have to consider when buying off the plan.

Variations in the contract

Most off the plan contracts have a condition which prevents the purchaser from rescinding the contract based on minor variations. Minor variations are those which are deemed necessary because of state regulations, unforeseen contingencies and product unavailability.

After contract date and during construction, certain specified brands or models of fixture may become unavailable or discontinued by the manufacturer, the developer will have no choice but to substitute a similar product.

Either party is not entitled to introduce changes in the contract once it is signed unless they both agree to do so. The purchaser should be extremely careful in examining the contract down to the very details.

Developer may rescind

If the purchaser is entitled to rescind before the settlement date based on some conditions, so is the developer. After the contract date, construction may become unviable, development may become impossible in some instances or sometimes, or there is just not enough sales to proceed with the project.

It may also be possible the city council will refuse to register the sub-division plan. The rule of thumb is if the contract does not provide a time for cancellation of the contract, either party may cancel within 18 months from the contract date if the sub-division plan is not registered.  Of course the purchaser is entitled to a return of his deposit.

Delays

Another risk is delays. Delays can occur in construction, in project completion as well as delays in settlement. One peculiarity in off the plan contracts is that the purchaser is prevented from cancelling the contract despite long delays so long as the subdivision plan is registered within the specified period, usually 18 months to 3 1/2 years after the contract date. Even if the date of settlement is delayed, the purchaser is compelled to purchase once the plan is registered.

Final Product

Because you are buying the property unseen, it is possible that you might not like the finished property upon turn over, although it conforms to the specifications in the contract. It may be possible upon occupation that an adjacent residential building will be under construction and that it creates too much noise.

Another example might be unforeseen traffic congestion you did not anticipate a few months before. It may also be possible you might not like the color schemes once you see what the finished property looks like. The purchaser must be willing to compromise.

However, there is a maintenance period or maintenance clause in off the plan purchases where the developer will attend to small repairs like sticking doors and wall cracks. He or she may also resort to legal action in some cases.

Stamp Duty

Stamp duty  is required to be paid within 12 months after contract date or unconditional date, whichever comes later. The amount will depend on the purchase price.

Buyers have the notion of lower stamp duty in all off the plan purchases. This is not always true. Vendors usually give purchasers incorrect stamp duty benefits in order to secure purchases. A word of caution in purchasing off the plan properties is to never trust initial stamp duty value provided.
Settlement Date

Settlement date is the date when you will have to pay for the agreed lot. The purchase price is provided in the contract and is usually the purchase price less the deposit with adjustments for outgoings.

The rule of thumb in buying off the plan properties is that the purchaser is entitled to rescind the contract and to a return of deposit if the developer fails to complete the project by the sunset date or upon settlement. Make sure this is stated clearly in the contract.

Rescinding the contract

In certain circumstances,the purchaser and the developer can rescind the contract before the settlement date. Grounds for rescission and special conditions are provided in the contract itself. For the developer, he can rescind if the development becomes unviable or if it has become impossible due to state regulations or other events stated in the Contract.. As for the purchaser, he can cancel the contract if the project is not completed on time or if sub-division plan is not registered within the specified time. The purchaser, in some specified conditions, can also rescind if the finished project is too far removed from agreed specifications. .

Both parties can terminate the Contract if the lot is not completed by the sunset date set out in the Contract.

In off the plan contracts, the developer is given some form of flexibility to apply minor changes as to floor plans, colour schemes and type of fixture as some products can become unavailable upon construction. As long as the changes applied are minor and not too far removed from the agreement, the purchaser is not entitled to cancel.

Deposit and Financing

Purchasers are usually required to put down deposit upon signing of the contract.  The price is locked in at the current market price. Therefore, even if the market price of the property goes up at the time of settlement, you will only need to pay the agreed price.

Deposit can also be in the form of bank guarantees or bonds. You should have a talk with your developer regarding your preferred type of deposit. Other off the plan contracts also have a clause where the purchasers are allowed to rescind if they opt financing but their applicationa are subsequently disapproved. Examine your contract if it contains a similar clause.

Defects and Variations

Off the plan contracts have a maintenance clause wherein the developer assumes responsibility for defects of the finished project. Familiarize yourself with what defects are covered under this clause and what possible recourse you have in case of other defects.

Between the contract date and completion, it is possible that some fixture or furniture stated in the contract will become unavailable or obsolete. The developer will have to substitute or replace them with what are currently available. Variations are sometimes necessary. As long as the variations are not too far removed from the agreed specifications, the purchaser can not cancel the Contract.

Here are 7 Important Tips you need to consider before you sign your Contract:

1. Research your developer.

It is wise to read about previous projects of the developer. It will give you a good idea of the developer’s reputation if you research whether some of the projects failed and the cause of failure. Ask some of your friends if they have had experiences with the developer.

2. Examine and read each clause of the contract.

The peculiarity of off the plan purchases is that you only have the contract to hold on to. There is no tangible proof of the terms other what are written in the contract itself. You need to carefully read and know what each clause means. Ask the developer if a clause is unclear. Be sure you are satisfied with the details and inform the developer if you do not agree with some terms. We recommend that you seek legal advice before you sign your Contract.

3. Do not trust stamp duty initial valuation.

Vendors usually give purchasers attractive benefits in stamp duty to lure them to purchase. Do not trust the material given to you by the real estate agent as to stamp duty. The only way to ascertain stamp duty is to check the stamp duty at:  http://amun.osr.qld.gov.au

4. Do not pay too much.

The value of the property could rise or fall after the contract date. Do not settle on a higher price just because you have the time before paying. Remember that you cannot be sure what could be the value of the property on the settlement date. It is advisable to research on the current price of other similar properties located near the project site to give you an idea of the price trend.

5. Know your rights under the contract

You should know what possible remedies you could take in case the developer violates any terms under the contract. Will your money be returned in full in case you rescind? Are you allowed to back out in case of variations of the finished project? It is recommended that you consult with real estate law practitioners. Have them read the contract and explain to you what are possible actions you can take against the developer in case of breach. He or she can explain you in details what wrongs are actionable under Queensland’s real estate law.

6. Consider the details.

The contract should give you a mental image of the finished project. It should provide details as to floor plan, fixtures, furniture as well as amenities like parking space. Before signing the contract, make sure you are satisfied with each aspect of the project. It is unlikely that the developer will change the terms to favor you once the contract has been signed. Read and ask before signing.

Know what could be the possible variations. Upon construction, it is possible the developer cannot find the exact brand or style of fixture stated in the contract. Substitution will become necessary. After the contract date, the developer might also change some aspects to comply with state building regulations.

7. Decide on financing scheme

Financing is an important aspect in any real estate purchase. Developers usually require a certain amount of deposit upon signing of contract. Try to negotiate a minimum deposit as developers are usually keen on attracting more purchasers for their project. Decide on deposit options. Deposit can be in the form of bank guarantees or bonds. Have a talk with the developer if you prefer a certain type of deposit. Make sure you are able to pay when the settlement date arrives.

By Inn Hui Lim
Monday, 18 March 2013

From 1 July 2012, the Queensland Government reinstated the transfer duty home concession for home owner occupier buyers, which was previously abolished in August 2011.

The home concession applies to purchasers who are buying a property to occupy as their principal place of residence. It provides for a concessional rate of 1% for up the $350,000 of the purchase price, thereafter, the normal stamp duty rate applies.

You can check the current home transfer duty at: http://www.osr.qld.gov.au

Eligibility for Home Concession

To qualify for home concession, you must:

• Move into the home being purchased within 1 year of the date of transfer or acquisition. Normally, this will be the date that you complete settlement of your purchase.

• Live in the home as your principal place of residence for at least 1 year

• Not dispose the property before moving in or within 1 year of the date of occupying your home.

Exclusion of Non-Residential Component

The home concession does not apply to any area of the property you purchase that is used for non-residential purpose. For instance, if you intend to use a dedicated area in your home as an office, you are will not be entitled to the home concession for that area of your home.

For more detailed information, go to:
Public Ruling DA087.

Change of Mind or Circumstances

If you paid the home concession rate when you bought the property and cannot meet the requirements of the home concession eligibility requirements, you must notify the Office of State Revenue within 28 days of becoming eligible. You will need to submit Form D2.4 and provide the Office of State Revenue with your original stamped Contract. The Office of State Revenue will reassess your transfer duty rate and in some instances, you may have interest and penalty tax on the difference between the normal stamp duty rate and the home concession rate.

Typical pre-conditions to a sale include obtaining: building and pest inspections, finance approval, Pool Safety Inspection certificate, pre-settlement notice, etc. For instance, if the contract is subject to satisfactory building and pest inspection reports, the buyer must take all reasonable steps to obtain the reports. The buyer must seek a building inspector.

Any major adverse issue with respect to the property to which the buyer is not satisfied with may be a ground to terminate the contract without penalty.

If any of the pre-condition is not satisfied, either of the parties may terminate the contract without incurring penalties.
Otherwise, once the seller receives the full deposit and other conditions of the contract have been met, the contract becomes unconditional. An unconditional contract of sale is legally binding between the parties.

After becoming unconditional, non-performance of obligation of either party renders him in default. If for instance the buyer decides not to proceed with the sale, he becomes a party in default. The seller who is the non-defaulting party has every right to forfeit the deposit and may even claim damages against the defaulting buyer. The seller may also recover as a liquidated debt, any part of the deposit which is not paid when required.

However, an instance when most sellers allow buyers to terminate the contract without incurring penalty is when the buyer himself dies. This is a termination for a valid reason to which the defaulting party is not held in breach. Thus, in case of death, the seller is NOT entitled to forfeit the deposit and the buyer is entitled to its return.

The date the contract becomes unconditional is significant also for other reasons. The stamp duty is payable within one month of the Contract Date or the date on which the Contract becomes unconditional (whichever is later). Failure by the buyer to pay stamp duty on time renders him liable to penalties.

The cooling off period usually starts one business day from contract date or the date the contract becomes unconditional. At any time within the cooling off period of 5 business days, the buyer is still entitled to terminate the contract subject however to a penalty.

Also, once the contract becomes unconditional, the real estate agent is still entitled to his commission irrespective of what happens after that date. This is on the basis of the agent’s role being limited to securing for the seller an unconditional contract. The commission is usually deducted from the buyer’s deposit to be forfeited, if the buyer defaults after the contract becomes unconditional. Otherwise, his commission is still deductible from the full deposit to be paid to the seller.

On the first business day after the contract date, the risk on the subject property is transferred to the buyer. The buyer should telephone his chosen insurance broker so that the latter may issue a certificate of insurance immediately. If the buyer is obtaining finance, this matter should be communicated to the insurance broker so that the bank may be noted on the insurance policy as a first mortgagee.

It is also necessary to conduct a title search to ensure that the buyer gains good title to the property bought. It is also essential to carry out other searches which may reveal any matter adversely affecting the property.

After the contract has been signed, and if a search conducted reveals that the property is adversely affected because: (1) the present use is not lawful; (2) the land is affected by a proposal of a competent authority; (3) access or any services to the land passes unlawfully through other land; (4) an authority has issued a current notice to treat, or notice of intention to resume; or (5) the property is affected by the Queensland Heritage Act 1992 or is included in the World Heritage List, and these facts are not disclosed in the contract, the buy is entitled to terminate the contract up to 2 business days prior to settlement date. The buyer should seek the advice of the solicitor regarding which search to take.

As searches do not often disclose error in boundaries or physical encroachment on the land, a survey may be conducted. The buyer may engage the services of a surveyor for this matter. Adverse observations made by the surveyor must be communicated to the solicitor since this is a ground for termination of the contract or for damages.

Foreign ownership should be communicated to the solicitor. If the buyer is a foreign person or a trustee of a foreign company or trust, the buyer needs to obtain the consent of the Foreign Investment Review Board under the Foreign Acquisition and Takeovers Act 1975. It is essential to include a Special Condition to make the contract subject to the foreign buyer obtaining consent from the Foreign Investment Review Board.

After the contract has been signed, the buyer is entitled to enter the property twice:

(1)    Once for the obtaining the pest and building inspection; and

(2)    Once for the purpose of conducting pre-settlement inspection.  It is the buyer’s responsibility to contact the seller or his agent to arrange the date for inspection. It is suggested to set the date closer to the date of settlement and ensure, among other things, that no fixture included in the contract is removed and the check the condition of the property.

Prior also to the settlement date, it is recommended that the buyer  lodge a Form 23 Settlement Notice with the Department of Environment and Resource Management. The effect of this notice is to protect the buyer’s interest in the property by prohibiting the registration of any conflicting interest in the property between period of settlement and registration of the transfer.

Prior to settlement, all transfer documents must be prepared and signed, relevant searches conducted and transfer duties attended to. The settlement  must take place by 5 p.m. on the date of settlement. The solicitors will arrange for the cheques to be issued by the buyer or buyer’s financier. In exchange of the cheques, the financier takes the transfer documents and release of mortgage. If there is no finance involved, the buyer’s solicitors take the transfer documents and release of mortgage, and register the same.

Failure to tend to such matters before the critical dates may give rise to significant adverse consequences. One example would be failure to effect settlement on the settlement date. On the settlement date, the buyer is presumed to be able and willing to settle the purchase. Otherwise, he becomes a party in default.

Consequently, the non-defaulting party (seller) has the right to terminate or affirm the contract, take the deposit and/or obtain damages from the reluctant buyer for loss of a resale of property.

However, there are certain cases where essential dates particularly the settlement dates may be suspended. When the essential date is suspended, time is no longer of the essence. Non-compliance by either party shall not put them in breach of contract.

This is when either party to the contract is unable to meet the obligatory date because of a natural disaster, provided that the affected party takes reasonable steps to minimize the effect of natural disaster on his ability to perform under the contract.

When the natural disaster no longer prevents that party from performing their settlement obligation, the party in default is required to notify the other party that he or she is no longer affected and either party may serve a notice to settle which must state that the suspension has ended. After that they could nominate a new settlement date stating that time is of the essence. The suspension of time having ended, the parties are now obliged to settle on the agreed new date.

Note that time suspension is NOT available when the inability to perform is attributable to:

(2) termination or variation of an agreement between a party and a third person relating to finance, encumbrance or another sale.

As these dates are obligatory, it is suggested that buyers take note of these critical dates of the proposed contract. The parties’ solicitors normally calculate and diarise these essential dates for the parties by careful examination of the contract. However, it is still best for the parties to personally diarise and examine the contract to avoid any miscalculation of the essential dates.

Essential dates in a typical contract of sale of real property include the contract date, payment of initial deposit and balance, start and expiry of cooling off period, building and pest inspection date, finance date, date for payment of transfer duty and settlement date.

In a normal sale and purchase transaction where the parties have engage solicitors to act on their behalf, the solicitors normally ensure that the essential terms are fulfilled on the relevant dates.

Under Property Agents and Motor Dealers Act (PAMDA) of 2000, beginning October 1, 2010, all residential property buyers in Queensland must sign a form called a Warning Statement or Form 30c. This is required to be attached to the proposed contract and signed before entering the contract of sale.

This form advices the buyer to:

(1) Seek independent legal advice as to property purchase; and
(2) Obtain an independent valuation of the property he or she intends to buy.
Form 30C ensures that the buyer understands his rights and obligations to a proposed contract before signing it.

The Warning Statement also contains important consumer protection information regarding the cooling off period.

Form 30C recommends the buyer to exercise extreme caution in accepting advice from anyone referred to by the seller or his agent. Unlike a solicitor, a real estate agent is not qualified to give legal advice on the contract, draft clauses or modify the standard contract in any way. Obtaining legal advice from an independent solicitor prevents possibility of fraud and misleading advice. Consequently, the Form recommends the buyer to clarify any query or concern especially regarding Warning and Disclosure Statements in the contract.

Further, Form 30c recommends the buyer to obtain Independent valuation of the residential property to be certain of the fairness of the purchase price. In some instances, the chosen valuer may have an interest or relationship with the seller or his agent. To avoid this, it is suggested that valuation advice be obtained from an independent Queensland Valuer. Valuation may be obtained prior to the execution of the contract or within the cooling off period.

A separate section of the Form outlines the 5-business day cooling period (“the period”) within which the buyer may terminate the contract. The period starts one business day after the contract is received by the buyer or the buyer’s solicitor.

The Contract can be terminated by a signed and dated notice of termination sent by the buyer or the buyer’s solicitor to the seller indicating the intent to terminate under Section 307A of PAMDA. Termination of the contract within the cooling off period is a legal right of the buyer subject however to a termination penalty of 0.25% of the proposed purchase price. If the buyer decides to terminate the contract, the seller is obliged to return the balance of the deposit within 14 days from notice of termination.
After the cooling period expires, the buyer becomes legally bound by the terms of the contract.