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FAQs

FAQs

When a person passes away without a valid Will, they are said to have died “intestate.” In Western Australia, this means their estate isn’t distributed according to their personal wishes, but rather by a strict legal formula set out in the Administration Act 1903.

The process begins with an application to the Supreme Court for Letters of Administration, which appoints a suitable person (usually the closest next-of-kin) to manage the estate. This administrator is then responsible for paying debts and distributing the remaining assets based on the state’s “order of priority.” Generally, the estate is shared between a surviving spouse and children, but if there are none, it may pass to parents, siblings, or more distant relatives.

Dying intestate can lead to unintended outcomes, such as assets being split in ways you didn’t intend or causing unnecessary stress and legal costs for your family. This is why we strongly recommend having a valid Will in place to maintain control over your legacy.

Updating your Will is essential whenever you experience a significant life event, such as marriage, divorce, the birth of a child, or a substantial change in your financial position. In Western Australia, you generally have two options for making changes. For minor updates, you can create a Codicil, which is a separate legal document that sits alongside your existing Will. However, for more significant changes, it is often safer and clearer to draft a completely new Will that revokes all previous versions.

It is important to note that certain events, like marriage or the formal ending of a de facto relationship, can automatically revoke parts of an existing Will or make it entirely invalid. Simply marking up your current physical Will with a pen is not legally effective and can lead to costly disputes or “uncertainty” in the Supreme Court later. At Barnard Lawyers, we recommend reviewing your Will every three to five years to ensure it still reflects your current wishes and protects your loved ones effectively.

While you can create a Will using online platforms in Australia, whether it is legally valid depends entirely on meeting strict formal requirements. In Western Australia, a Will must generally be in writing, signed by the testator (the person making the Will), and witnessed by two independent adults who are both present at the same time.

The danger with “DIY” or online Wills is not just the signature; it is the potential for ambiguity or technical errors. Online templates are often generic and may not account for complex family structures, tax implications, or the specific way you hold your assets (such as through a trust or superannuation). If an online Will is challenged or found to be invalid due to improper execution, it can lead to significant legal costs and delays for your family, often far exceeding the cost of professional advice.

At Barnard Lawyers, we focus on ensuring your Will is not just “valid,” but robust enough to withstand challenges and clear enough to prevent confusion during an already difficult time.

In short, yes—you can legally write your own Will in Western Australia. However, while the law allows for “DIY” Wills, the Supreme Court has very strict requirements regarding how they must be drafted, signed, and witnessed. Even a minor technical error can render the document invalid or lead to an expensive legal battle for your family.

The primary risk of writing your own Will is not the document itself, but what it might miss. Homemade Wills often fail to account for how assets like superannuation or family trusts are handled, or they use ambiguous language that can be interpreted in multiple ways. This “uncertainty” can trigger a “Challenge to the Will,” causing significant delays and depleting the estate’s value in legal fees.

At Barnard Lawyers, we often see the complications that arise from DIY kits. Our role is to provide the professional oversight that ensures your Will is “bulletproof,” clearly reflects your intentions, and complies with the Wills Act 1970. Investing in professional drafting now often saves your loved ones thousands of dollars and immense stress in the future.

While many people wait until retirement, the reality is that any adult who owns assets or has dependents should have a Will. In Western Australia, as long as you are over 18 and have the mental capacity to understand the document, you are eligible to create one.

There are specific “milestones” that make getting a Will—or updating an old one—an urgent priority. These include:
– Buying Property: Whether it’s your first home or an investment, you need to decide who inherits your equity.
– Starting a Family: A Will is the only legal way to nominate guardians for your minor children.
– Getting Married or Divorced: In WA, these events can automatically revoke or alter parts of an existing Will.
– Significant Financial Changes: Receiving an inheritance or starting a business changes the complexity of your estate.

At Barnard Lawyers, we recommend that you don’t wait for a “major” event. Having a Will in place ensures that your wishes are respected and your loved ones are protected from the complications of intestacy, regardless of what the future holds.

Yes, a Will can be challenged or contested in Western Australia, but only under specific legal circumstances. It is important to distinguish between challenging the validity of the Will and contesting the fairness of the distribution.

A Will might be challenged on its validity if there are concerns that the person lacked mental capacity, was under undue influence, or if the document was not signed and witnessed correctly. On the other hand, an eligible person—typically a spouse, de facto partner, or child—can contest a Will under the Family Provision Act 1972 if they believe they have not been “adequately provided for” for their proper maintenance and support.

At Barnard Lawyers, we focus on “claim-proofing” your Will by ensuring it is professionally drafted, clearly explains your reasoning for certain decisions, and follows all strict legal formalities. While no lawyer can completely prevent someone from attempting a claim, a well-structured estate plan significantly reduces the risk of a successful challenge and helps protect your intended legacy.

An estate plan is not a “set and forget” document. It should evolve alongside your life, finances, and family structure. Generally, we recommend reviewing your estate plan every three to five years, or immediately following any significant life event.

In Western Australia, certain milestones make an update essential. For example, marriage or entering a de facto relationship can automatically revoke an existing Will, while a divorce may render certain provisions invalid. Other triggers include the birth of children or grandchildren, the death of a nominated executor or guardian, or a substantial change in your assets—such as starting a business or buying property. If your relationships with your beneficiaries change, or if the laws surrounding superannuation or taxes shift, your current plan may no longer achieve your goals.

At Barnard Lawyers, we help you assess whether your existing documents—including your Will, Enduring Power of Attorney, and Enduring Power of Guardianship—still reflect your wishes. Staying proactive ensures that your plan remains legally robust and that your loved ones are protected exactly as you intended.

FAQs

In the fast-paced business landscape of Western Australia, engaging a commercial lawyer early is often the difference between a minor hurdle and a costly legal crisis. While many business owners wait for a dispute to arise, the most strategic time to seek legal counsel is during the “prevention” phase, ideally before you sign a significant document or commit to a major transaction.

A commercial lawyer provides essential support when you are structuring your business to ensure your personal assets are protected through companies or trusts. We play a vital role when you are entering into contracts, such as leases and supplier agreements, by ensuring the terms are balanced and enforceable. Additionally, our expertise is invaluable when navigating complex tenders in sectors like energy and construction, or when drafting employment agreements to ensure workplace compliance. By involving us at these key milestones, you secure the legal precision needed to manage risks and scale your business with confidence.

While it is technically possible to register a business name yourself, engaging a solicitor at the startup phase is a strategic investment that can prevent expensive legal failures later. Starting a business involves making critical decisions that carry long-term liability, and a solicitor ensures those decisions are backed by sound legal structures.

One of the most important roles we play is helping you choose the right business structure, whether that be a sole trader, partnership, company, or trust. This choice dictates your personal liability, tax obligations, and your ability to scale. We also provide the necessary framework for your operations by drafting precise terms and conditions, shareholder agreements, and employment contracts that protect your intellectual property and limit your exposure to disputes. Furthermore, a solicitor can review commercial leases and supply agreements before you sign them, identifying onerous clauses that could harm your cash flow. By securing professional legal advice from the beginning, you move from simply owning a business to building a robust, protected enterprise.

Consulting a commercial lawyer before purchasing or selling a business is one of the most effective ways to protect your financial interests and ensure a smooth transition of ownership. These transactions are rarely straightforward, involving a complex transfer of assets, liabilities, employees, and intellectual property that require precise documentation to be legally enforceable.

For a buyer, a solicitor performs essential “due diligence” to verify that you are getting exactly what you are paying for. This includes checking for hidden debts, ensuring equipment leases are transferable, and confirming that the business holds the necessary permits and licenses. We also draft or review the Sale of Business Agreement to include robust warranties and indemnities that protect you if the seller’s disclosures prove inaccurate.

For a seller, we focus on mitigating post-sale risk. We help structure the deal to ensure a clean exit, ensuring that all restraints of trade are reasonable and that your liability for past business activities is clearly limited. Whether you are entering a new venture or moving on from an old one, professional legal oversight ensures the contract accurately reflects the commercial deal while safeguarding you from future litigation.

Before signing any business contract, it is vital to look beyond the headline figures and scrutinise the underlying risks and obligations. One of the most critical elements to review is the termination clause, which dictates how and when a party can exit the agreement and what penalties or notice periods apply. You should also pay close attention to indemnities and limitations of liability; these clauses determine your financial exposure if something goes wrong and should be balanced to ensure you aren’t assuming unfair levels of risk for the actions of others.

Furthermore, ensure that the scope of work or services is defined with absolute precision to avoid “scope creep” and that the payment terms clearly outline when invoices are due and what interest applies to late payments. Finally, check the dispute resolution section to understand where and how disagreements will be handled. Small details, such as a clause allowing the other party to unilaterally vary the terms, can have significant long-term consequences. Having a commercial lawyer review these “fine print” items ensures that the agreement aligns with your operational reality and protects your bottom line.

Absolutely. Having a commercial lawyer review your contract is a vital step in protecting your business from unforeseen liabilities and “hidden” clauses that could impact your profitability. At Barnard Lawyers, we don’t just look for typos; we conduct a rigorous analysis of the legal and commercial risks within the document to ensure it reflects the deal you think you are making.

Our review process focuses on key areas such as indemnity clauses, which dictate who pays if something goes wrong, and termination rights, which ensure you have a clear path to exit the agreement if necessary. We also look for “unilateral” terms that give the other party unfair power and ensure that payment milestones and intellectual property protections are clearly defined.

By engaging us to review your contract before you sign, we can help you negotiate more favorable terms and provide a plain-English explanation of your obligations. This proactive approach prevents the high costs of litigation that often arise from poorly drafted or misunderstood agreements. Whether it is a small supply contract or a complex master services agreement, professional oversight provides the certainty you need to operate with confidence.

FAQs

Property law and construction law focus on different stages of a project. Property law is about ownership and rights over land. It governs transactions like buying and selling, commercial leasing, and land titles. It essentially deals with the legal status of the property itself.

Construction law focuses on the physical building process. It covers the contracts between developers, builders, and subcontractors, while managing risks like project delays, defects, and payment disputes. While property law secures the land, construction law ensures the project is built correctly and that all parties are protected throughout the development.

A standard construction contract relies on five core elements to ensure a project runs smoothly and legally. First is the Scope of Works, which provides a detailed description of exactly what is being built to prevent disputes over “extras.” Second is Payment Terms, outlining the contract sum and how progress claims are made under the Building and Construction Industry (Security of Payment) Act.

Third is the Timeline, specifying the commencement date and the date for “practical completion.” Fourth is Quality and Defects Liability, which sets the standards for workmanship and the period for fixing issues. Finally, Dispute Resolution clauses dictate how disagreements are settled without halting the project. Together, these elements provide the essential framework for risk management and project certainty.

Yes, a construction contract can be changed midway through a project, typically via a process known as a variation. In Western Australia, most standard form contracts include specific clauses that allow for changes to the scope of work, materials, or timelines.

To be legally binding, a variation should usually be in writing and signed by both parties. This ensures clarity on how the change affects the total contract price and the date for practical completion. Without a formal written agreement, “verbal changes” often lead to significant disputes and payment delays later. At Barnard Lawyers, we recommend strictly following the contract’s variation procedure to protect your cash flow and ensure the project remains legally compliant.

FAQs

A Solicitor’s Certificate is a certificate of Independent Legal Advice to a borrower or guarantor in relation to a proposed loan. In providing legal advice, a Solicitors Certificate confirms to a lender (a bank or financial institution) that a borrower or guarantor has received independent legal advice and understands the potential liabilities and risks involved in the proposed loan agreement.

For us to provide you with informed advice we need copies of the proposed loan agreement. These documents can be delivered to our office in hardcopy, or they can be emailed in soft copy. It is important to ensure all documents are provided so that there is no delay in receiving the advice.

We require two business days before our meeting to review the documents and prepare a written letter of advice.

The meeting will be conducted in person at our office. Any person receiving advice is required to bring their identification documents so that the solicitor providing the advice can verify their identity. Before the meeting we will discuss which identity documents you need to bring with you.

If you are a couple, then we must speak to you both independently to ensure you are both willing to enter into the loan agreement.

We require at least two business days to review the documents before the advice can be provided.

No, a solicitor can only provide legal advice and cannot provide financial advice. A Solicitors Certificate does not provide advice on the viability of a transaction in which the borrower is undertaking, cannot comment on the borrower’s ability to make the required payments to the lender, or a guarantor’s ability to make payment to the lender. We recommend always seeking independent financial advice before signing loan agreements and security documents.

A solicitor’s certificate is a formal document provided to a lender confirming that you have received independent legal advice regarding a loan or guarantee. It is most commonly required when you are using property as security for a business loan or acting as a guarantor for someone else’s mortgage.

The certificate proves to the bank that you fully understand the risks, your obligations, and the legal consequences of the documents you are signing. By providing this, we ensure you aren’t being pressured into an unfair agreement and that you are aware of how your assets could be affected if the loan isn’t repaid. It is a vital safeguard that protects both you and the lender from future claims of misunderstanding or undue influence.

A solicitor’s certificate for a guarantor is a document required by banks to ensure you understand the gravity of backing someone else’s loan. It confirms that an independent lawyer has explained the mortgage or guarantee documents to you, specifically highlighting that you may become liable for the full debt if the borrower defaults.

The bank requires this to prevent “”unconscionable conduct”” or claims that you were pressured into the agreement. During the consultation, we review the loan terms and explain exactly which of your assets—such as your home—are at risk. This process provides a vital layer of protection, ensuring your decision to act as a guarantor is fully informed and legally sound before you commit.

In most cases, obtaining a solicitor’s certificate online is difficult because most Australian banks require a face-to-face meeting. This is a security measure to ensure you are signing the documents voluntarily and are not under any outside pressure or “undue influence.”

During an in-person consultation, we must verify your identity and confirm that you fully comprehend the financial risks involved. While some lenders have softened their stance post-pandemic to allow for video conferencing, many still insist on a physical meeting to witness your signature in person. We recommend checking your bank’s specific letter of offer first; however, at Barnard Lawyers, we usually conduct these in our Perth office to ensure the certificate meets the strict compliance standards required by major lenders.

Legal advice is the comprehensive process where we analyse your specific situation, explain the law, and recommend the best course of action to protect your interests. It is a broad service used to solve problems or plan for the future.

A solicitor’s certificate is a specific, formal document produced after legal advice has been given. It is usually a bank requirement, where we certify to a third party (like a lender) that we have explained a specific contract—such as a guarantee or mortgage—to you. While legal advice is for your benefit, the certificate is for the bank’s benefit to prove you entered the deal with your eyes wide open.

To provide a solicitor’s certificate, we need to review the exact documents the bank has issued to you. You must bring the full Loan Offer or Guarantee documents, including the “General Terms and Conditions” booklet, which contains the fine print the bank expects us to explain.

You also need to provide original identification, such as a current Passport or Australian Driver’s License, to satisfy “Verification of Identity” (VOI) requirements. If the loan involve a company or trust, we will need the relevant Constitution or Trust Deed to confirm you have the authority to sign. Having these ready ensures we can complete the advice and the certificate in a single appointment, satisfying the bank’s strict compliance standards.

Interested in working with us?

If you have any questions or would like to discuss your specific requirements, please don’t hesitate to get in touch with our friendly team. We’re here to help you navigate the legal landscape and achieve your goals.

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