It is increasingly common for parents and other relatives to assist children financially by providing money for a home deposit, purchasing property, supporting a business venture, or helping through difficult financial periods. However, when a marriage or de facto relationship breaks down, an important question often arises:

Will the Family Court recognise a family loan as a genuine debt during a property settlement?

The answer is not always straightforward. Even where a written loan agreement exists, the Family Court has the discretion to determine whether the debt should be included in the property pool and, if so, how much weight it should be given.

At Beaumaris Lawyers & Conveyancers, we regularly advise clients who have lent money to their adult child who later separates from their partner, leaving the lender parents concerned as to the impact the separation has on the security of the loan.  This is relevant for all family loans including loans from parents, siblings and other relatives. Understanding how these arrangements are assessed can help protect your interests and reduce future disputes.

Is the Family Court Bound by a Family Loan Agreement?

In family law property proceedings, the Court’s primary obligation is to make orders that are just and equitable in the circumstances.

When determining a property settlement, the Court considers:

• The assets and liabilities of the parties;
• Financial and non-financial contributions made during the relationship;
• Future needs of each party; and
• Any other relevant circumstances.

A family loan agreement is relevant evidence of a liability, but it is not automatically binding on the Court.

The Court may:

• Accept the loan as a genuine debt and include it in the property pool;
• Recognise the debt but apply a discount if repayment appears unlikely; or
• Determine that the arrangement was actually a gift or financial assistance rather than a genuine loan.

This means that simply having a signed document may not be enough to ensure the debt is fully recognised in Family Court proceedings.

Why Are Family Loans Sometimes Rejected or Discounted?

1. The Court Looks Beyond the Paperwork

The Family Court examines the reality of the arrangement, not merely the existence of a signed document.

If a loan agreement appears to have been prepared after relationship difficulties arose, or solely in anticipation of litigation, the Court may question its legitimacy.

The Court focuses on whether the parties genuinely intended to create a legally enforceable loan arrangement.

2. No Genuine Intention to Enforce Repayment

Many family loans are made informally.

Where parents have never requested repayments, issued reminders, charged interest, or taken steps to recover the money, the Court may conclude that the funds were intended as family support rather than a recoverable debt.

This can significantly reduce the likelihood of the loan being recognised in a property settlement.

3. Unclear or Informal Loan Terms

Poorly documented loans often create difficulties.

Common issues include:

• No repayment date;
• No repayment schedule;
• No interest provisions;
• No default clauses;
• Unclear loan amounts; or
• No written agreement at all.

When the terms are uncertain, the Court may find that the liability has not been adequately established.

4. The Funds Were Actually a Gift

In some circumstances, financial assistance from parents may be treated as a gift, advance inheritance, or contribution to the parties’ financial circumstances.

Evidence suggesting that repayment was never genuinely expected can lead the Court to conclude that the money was not a true loan.

5. Family Members Are Often Reluctant to Enforce the Debt

The Court frequently considers whether a family member would realistically pursue legal action to recover the money.

If the lender has historically been lenient or has indicated they would not seek repayment if the relationship ended, the Court may give less weight to the alleged liability.

6. Timing Matters

A loan agreement prepared years after the funds were advanced can attract scrutiny.

The closer the documentation is to the original transfer of funds, the stronger the evidence that a genuine loan existed from the outset.

7. Best Practices: How to Improve the Chances of a Family Loan Being Recognised

While no strategy can guarantee how the Family Court will treat a particular loan, several practical steps can significantly improve the prospects that the debt will be regarded as genuine and enforceable.

Use a Properly Drafted Written Loan Agreement

A comprehensive written agreement should:

• Clearly identify all parties;
• State the amount advanced;
• Outline repayment obligations;
• Include interest provisions (if applicable);
• Specify default consequences; and
• Be signed and dated by all parties.

Professional legal drafting reduces uncertainty and strengthens the credibility of the arrangement.

Keep Evidence of the Funds Advanced

Maintain clear records showing:

• Bank transfers;
• Settlement statements;
• Receipts; and
• Any supporting financial documentation.

The Court will often look for objective evidence that money was advanced as a loan rather than gifted.

Include Commercially Realistic Terms

Although family loans need not mirror bank lending arrangements, they should contain clear and enforceable terms.

Well-defined repayment obligations demonstrate a genuine intention to create legal relations.

Consider Registering Security

Where appropriate, lenders may consider taking security over property through:

• A registered mortgage;
• Caveat;
• Charge; or
• Other security arrangements.

Security is often strong evidence that repayment was genuinely intended.

Record and Enforce Repayments

Even modest repayments can assist in demonstrating that the parties treated the arrangement as a genuine loan.

Keep records of:

• Repayment schedules;
• Bank transfers;
• Outstanding balances; and
• Correspondence regarding repayments.

Maintain Consistent Records

Regular statements showing balances, repayments and interest (where applicable) can support the credibility of the loan arrangement.

Good record keeping is often persuasive evidence in Family Court proceedings.

Take Enforcement Seriously

If repayments are missed, consider issuing written reminders or formal notices where appropriate.

A consistent enforcement approach can help demonstrate that the loan was intended to be repaid.

Avoid Language Suggesting the Money Is a Gift

Emails, text messages and conversations can become evidence.

Avoid statements indicating that the debt will be forgiven, waived, or treated as an inheritance, as these comments may later be used to argue that no genuine loan existed.

Obtain Independent Legal Advice

Encouraging borrowers to obtain independent legal advice before signing a loan agreement can strengthen the enforceability of the arrangement and reduce future disputes.

8. Can a Financial Agreement Help?

Couples may also consider entering into a formal Financial Agreement that addresses how liabilities, including family loans, will be treated if the relationship breaks down (before, during, or after marriage/de facto relationship).

While a financial agreement may provide additional certainty between the parties, it does not automatically prevent the Court from examining whether a family loan is genuine and enforceable.

This is a separate process requiring each borrower to obtain independent legal advice, and strict formal requirements apply. It can assist with certainty between the borrowers, but it does not automatically prevent Court scrutiny of a related-party loan—particularly as to whether the liability is genuine and enforceable.

9. What Does the Family Court Look For?

When assessing a family loan during a property settlement, the Court commonly asks:

1. Was there a genuine loan when the money was advanced?
2. Were the terms sufficiently clear and enforceable?
3. Did the parties behave consistently with a true lender-borrower relationship?

Evidence of security arrangements, regular repayments, documented loan terms and enforcement efforts will often carry significant weight.

10. Need Advice About Family Loans and Property Settlements?

If you have lent money to a child, family member, or relative and are concerned about how that loan may be treated if a relationship breaks down, obtaining legal advice early can make a substantial difference.

At Beaumaris Lawyers & Conveyancers, our experienced lawyers can assist with:

• Drafting family loan agreements;
• Reviewing existing loan documentation;
• confirming the evidence of advances (bank records); and
• discussing whether any form of security is appropriate in your circumstances.

Please contact us if you would like to proceed or if you wish to discuss any of the above in more detail by calling 9589 5444 or email reception@beaumarislaw.com.au

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Life events such as marriage, divorce, the birth of a child, or acquiring significant assets can impact your Estate Planning needs. Regularly updating your Will ensures it reflects your current circumstances and wishes.

So Why Do I Need a Will?

1. Distribution of Your Assets: A Will allows you to decide how your assets—such as money, shares, property, and personal belongings—are distributed after your death. Without a Will, the state decides how your estate is divided according to specific laws, which might not align with your wishes.
2. Protecting Your Loved Ones: A Will provides a clear plan for who should care for your minor children and how they should be financially supported.  You may also specify at what age your minor children may inherit.    It also helps prevent disputes among family members over your assets.
3. Blended families:  Many families are blended, with couples having assets from previous relationships, which they wish to give to the children of that relationship.  It is important to cater for not only your current partner, but also any children from a prior relationship.  We recommend you review the manner in which you hold your assets and how these are gifted in your Will if this is relevant to you.   We can provide comprehensive legal advice as to the way to deal with these situations.
4. Minimizing Stress and Confusion: During a difficult time, a Will can alleviate stress for your loved ones by providing clear instructions on handling your estate. It can help avoid lengthy legal processes and reduce the potential for family conflicts.
5. Saving on Taxes and Expenses: Proper Estate Planning, including a Will, can help reduce estate taxes and other costs associated with transferring assets. This means more of your estate can go to your beneficiaries rather than being spent on taxes and legal fees.

Different Types of Wills

1. Simple Will: This is the most common type of Will. It outlines who will inherit your assets and how they will be divided. It can also name guardians for minor children. A simple Will is suitable for straightforward estates without complex arrangements.
2. Testamentary Trust Will: This type of Will sets up one or more trusts to manage your assets after your death. It’s useful if you want to provide for beneficiaries over time, such as minor children or dependents with special needs. The trust can distribute assets according to specific conditions you set.

Things You Need to Consider

1. Who will be your Executors? Your Executors have the legal and administrative task of sorting out your assets and debts after you die and making sure that your wishes as outlined in the Will are upheld. You may specify whether your executor/s must act jointly or may act alone.  It is important to consider the age of the executors and whether they will be willing and capable of carrying out the administrative tasks associated with distributing your estate.

• Who will be your beneficiaries and what effect will their inheritance have on their circumstances? You can designate anyone as a Beneficiary and distribute your assets in any way you like, however if you don’t provide for your family and dependents, your Will may be contested and your hard-won assets used on litigation fees.

You should also consider the effects that an inheritance may have on your Beneficiaries.   In some cases, a testamentary trust can sidestep potential problems where the beneficiary may experience difficulties in managing such assets, or be disadvantaged by receiving a substantial bequest, so it’s important that you get specific advice about your situation.

• How do you know a Will is valid? To be valid, the person making the Will must be mentally competent, the Will must be correctly signed and witnessed and show no evidence of tampering. The witnesses to the Will cannot be beneficiaries or related to beneficiaries and must be over 18.

• How often should I review my Will? You should certainly review your Will after any major events, such as marriage, divorce, property purchase or sale, death of a beneficiary or if your assets change significantly. We also recommend that you review your Will every couple of years just to make sure that it is still relevant and reflects your wishes.

Creating a Will is an essential step in ensuring your wishes are respected and your loved ones are cared for after you’re gone. Whether your estate is simple or complex, having a Will provides clarity, reduces stress, and protects your legacy. If you haven’t done so already, Beaumaris Lawyers and Conveyancers can help with not only your Will but all of your Estate Planning needs like Powers of Attorney and Guardianship documents. We know the potential pitfalls and will ask you all the right questions to make sure that you have considered every possibility. We can advise you as to what Will is best for your certain needs and we can safely store your Will in our safe free of charge. So contact us today.

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What is Conveyancing?

Conveyancing is the legal process of transferring ownership of a property from one person to another. It involves various legal, administrative, and financial tasks that ensure the transaction is valid, binding, and completed correctly. Essentially, a conveyancer will make sure that when you buy a property, you are registered as the legal owner at completion of the transaction.   This process is completed through an online platform known as PEXA.

 A conveyancer will conduct the appropriate searches and inquiries on your behalf, which can include but is not limited to anything affecting the property such as proposals by government departments, illegal building work, or outstanding rates and taxes.

Why do I need a Conveyancer?

1. Expertise: Conveyancers are qualified professionals and have the expertise to handle the legal aspects of property transactions. They can review contracts, advise on your requirements and obligations, and ensure that all necessary documents are in order.  All conveyancing settlements are handled today on an electronic platform known as PEXA.  Only registered participants are able to transact on this platform.
2. Streamline: A conveyancer can help ensure that the transaction runs smoothly and that any potential issues or disputes are resolved quickly. They can also help to facilitate communication between parties, including the buyer, seller, real estate agent, and mortgage lender.

3. Legal Protection: A conveyancer or solicitor ensures that all legal aspects of the property transfer are handled correctly. This includes checking for any legal issues, such as disputes over boundaries, rights of way, or unpaid taxes that might affect the property.
4. Financial Security: Conveyancers manage the financial aspects of the transaction. They make sure that all funds are transferred securely, and they handle any mortgage arrangements, ensuring that you’re protected from fraud and financial loss.
5. Peace of Mind: Buying a property is complex and can be stressful. Having a professional handle the details allows you to focus on the move into your new home, knowing that all the legal and financial elements are being managed by an expert.
6. Cost-effective: While conveyancing fees may seem like an additional expense, engaging a conveyancer can actually save you money in the long run by identifying potential issues early on and avoiding costly mistakes.

You should never sign anything before you’ve asked for your conveyancer’s advice. Your conveyancer will ensure you understand your rights and obligations and are fully aware of all likely fees and charges.

Here are some specific situations when you should talk to a conveyancer:

•  Before making an offer: If you are buying a property, you should consider speaking with a conveyancer before making an offer. They can review the contract of sale and advise you on any legal obligations or requirements you need to be aware of.
• Before signing a contract: Once you have made an offer and the seller has accepted, you will need to sign a contract of sale. It’s important to have this contract reviewed by a conveyancer before you sign, as they can identify any potential issues or areas of concern.
• During the cooling-off period: In some states and territories, there is a cooling-off period after you sign the contract of sale. During this time, you can have the contract reviewed by a conveyancer and withdraw from the sale if necessary.
• During settlement: Settlement is the final stage of the property transaction, where ownership is transferred from the seller to the buyer on the online platform.  A conveyancer is necessary to ensure that all necessary legal documents are in order and that the transfer of ownership is completed smoothly.

Choosing the Right Conveyancer

You don’t need to wait until you are ready to sign a contract – it makes sense to select your conveyancer as soon as you decide to buy or sell a property. Selecting the right conveyancer is crucial for a smooth transaction. Look for professionals who are:

• Experienced: Ensure they have experience with property transactions similar to yours.
• Transparent: They should provide clear information about their fees and any additional costs.
• Communicative: A good conveyancer keeps you informed at every stage of the process.

The Conveyancing Process: Step-by-Step

1. Instruction: You instruct a conveyancer or solicitor to act on your behalf. This professional will guide you through the entire process.
2. Pre-Contract Stage: Your conveyancer will carry out several checks on the property. These include local authority searches, reviewing the contract provided by the seller’s solicitor, and checking the title of the property to ensure there are no legal issues.  Please note that we do not attend the property itself.  We also explain the terms of the contract to you, including your rights and obligations thereunder.
3. Exchange of Contracts: Once all preliminary checks are completed, and both parties are satisfied, contracts are signed. At this point, the transaction becomes legally binding. You will usually pay a deposit at this stage.  We are required to obtain a formal verification of identity from all purchasers and will guide you through this process.
4. Completion: On the agreed completion date, all rates are adjusted between the parties and the remaining money is transferred to the seller.  This process will take around 30 minutes from the time nominated for settlement.  Following completion, you may collect the keys to your new property. Your conveyancer will handle the payment of stamp duty and registration of the property in your name with the Land Registry. 
5. Post-Completion: Your conveyancer will ensure that all post-completion formalities are taken care of, including advising rating authorities of the change of ownership, paying any outstanding rates and sending you copies of the updated property deeds.   We note that all titles are now electronic files, with paper titles having been phased our.   Control of these titles will remain with your lender, or with our firm on your behalf.   

Conclusion

Conveyancing might seem like a daunting process, but with the right professional help from Beaumaris Law & Conveyancers, it can be straightforward and stress-free. By understanding the basics and knowing what to expect, you can approach your property transaction with confidence, ensuring that your property  transfer has been formally completed .

I hope this guide helps demystify conveyancing for you. If you have any further questions or need assistance with your property transaction, don’t hesitate to contact Beaumaris Law & Conveyancers today!

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Probate is the legal process of managing a deceased person’s estate. When someone passes away, they often leave behind property, assets, and debts that need to be handled. This entire collection is known as the person’s “Estate.”

If there is a valid Will, the process is called obtaining a “Grant of Probate.” If there isn’t a Will, the process is known as obtaining “A Grant of Letters of Administration.” Both of these processes are collectively referred to as “A Grant of Representation.” These grants give the Executor (named in the Will) or the Administrator (closest next of kin) the legal right to administer the deceased person’s estate.

Applying for a Grant of Representation

To obtain a Grant of Representation, an application must be made to the Supreme Court of Victoria. This grant allows the Executor or Administrator to manage and finalise the estate.

Do I need Probate in Victoria?

Probate is usually required when a person dies, and their estate needs to be finalised. If the deceased left a valid Will, the Executor named in the Will typically handles the estate. They will need to apply to the Supreme Court of Victoria for a Grant of Probate (also known as Grant of Representation) to legally administer the estate.

In cases where there is no valid Will, the closest next of kin is generally responsible for finalising the estate. They will need to apply for a Grant of Letters of Administration to do so.

However, if the assets are of nominal value or held in joint names, a Grant of Representation may not be necessary.

How Long Does Probate Take?

The time it takes to finalise an estate can vary, but it generally takes about a year for the Executor or Administrator to complete the process. Here’s a simple breakdown of the timeline:

1. Issuance of Death Certificate: Once the death certificate is issued, the application process can begin.
2. Identifying Assets and Liabilities: The Executor/Administrator must initially identify all assets and liabilities held by the deceased person.
3. Advertisement: An advertisement is placed on the Supreme Court website, alerting the public of the application. This must run for 15 days before filing the application with the Court.
4. Preparing the Application: Once the Death Certificate is issued and the assets and liabilities have been identified, Beaumaris Lawyers & Conveyancers can prepare the Grant of Representation Application.
5. Filing the Application: After the advertisement period, the application is filed with the Court.
6. Grant Issuance: The Court usually takes about 3-6 weeks to issue the Grant of Representation. If there is no Will, the timeframe can be shorter, sometimes even happening the same day the application is filed.

Finalising the Estate

Once the Grant of Representation is issued, the Executor or Administrator can begin administering the estate. This involves settling debts, calling in all assets according to the Will or intestacy laws, and completing any other necessary tasks to finalise the estate.

What is the time limit for executor to distribute a deceased estate in Victoria?

It is recommended that no distribution of the Estate takes place for a period of six-months after the date of Grant of Representation is made, as a claim could be made against the Estate for further provision.

Part IV of the Administration & Probate Act 1958 (Vic) allows an “eligible person” to bring a claim for further provision if they have either not received sufficient provision from the Estate or nothing at all.

Once the six-month limitation period has passed, the Executor/Administrator can administer the Estate according to the terms of the Will or pursuant to intestacy law.  If there is any variation required to this, a Deed of Family Arrangement will need to be entered into.

Claims Pursuant to Part IV of the Administration and Probate Act 1958 (Vic)

If you feel you been unfairly left out of a Will or received no provision at all and qualify to bring a claim, then Beaumaris Lawyers & Conveyancers can assist you in your claim against the Estate.

Understanding probate can help you navigate the process more smoothly during a challenging time. If you have any questions or need assistance with what probate involves, don’t hesitate to seek professional advice by contacting Beaumaris Lawyers & Conveyancers via email or call us on (03) 9589 5444.

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Contract for Sale of Land and Vendors

The Contract will include not only the legal terms and conditions of sale, but will also specify what items are included or excluded from the sale, and any other special requirements you might have, for example a longer or shorter settlement than usual, or perhaps that the contract be conditional upon another contract for you to buy your next property. There are a lot of ways that a contract can be varied, so it’s important to discuss your situation in detail with us at Beaumaris Law.

You also need to know your disclosure responsibilities, as failing to disclose certain things can lead to problems.

Settlement

Leading up to settlement, if you have a mortgage, we will liaise with your bank in relation to releasing any mortgage held on the property. In this time you should arrange disconnection of electricity and other services to take effect on the settlement day.

Before settlement the purchase price will be adjusted to reflect the council rates, water rates and owners corporation fees that need to be shared between the parties. There may be other adjustments, based on the Contract of Sale.

Whether you’re a first-time homebuyer or a seasoned property investor, understanding the process of conveyancing is crucial. Contact us to discuss the sale of your specific property with an experienced Conveyancer today!

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Buying property (home or commercial) is one of the most stressful and expensive things you will ever do. It’s vital that you seek legal advice from someone experienced in property law.

Before You Start

The first round of decisions you will likely need to make is in regard to finance. Make sure you read everything thoroughly, and request full details of the fees and charges to which you’ll be subject. Remember – you are entitled to legal advice and are under no obligation to sign anything on the spot.

Pre-purchase Inspections

Once you have found a property you like, you may wish to arrange a pre-purchase building inspection report and perhaps a pest inspection report. These are written reports about the condition of the property and help you find out any potentially costly problems. We recommend including conditions in the Contract, before it is signed, as to building and pest inspections. Speak with us regarding the wording of these conditions.

Making an Offer

If you’re happy to proceed, you can make an offer. It does not mean that the property is yours yet, as the agent can take other offers.

Signing the Contract

If your offer is accepted then bring the contract to us at Beaumaris Law and discuss your situation with us. You need to be absolutely clear on your rights and responsibilities before signing.

Settlement

After the contract has become binding, we have a number of tasks to perform including:

• Liaising with the lender in regard to the mortgage


• Checking with various government authorities to see if they have any interest in the property


• Checking to see if there are any outstanding debts to local council


• Calculating adjustments for council, water and strata rates


• Making final checks on the title

On settlement day your we will attend to settlement on your behalf.

Contact us to discuss the specific property you are considering buying.

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