Developments in succession law and estate planning
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DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING. By Kate McQueeney 31 May 2008. INTRODUCTION. Proof in solemn form Family Provision applications Binding financial agreements Trust deeds. PROOF IN SOLEMN FORM. Summary judgment in a solemn form action Hayes v Hayes [2008] QSC 6

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Developments in succession law and estate planning

DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING

By Kate McQueeney

31 May 2008


Introduction

INTRODUCTION

  • Proof in solemn form

  • Family Provision applications

  • Binding financial agreements

  • Trust deeds


Proof in solemn form

PROOF IN SOLEMN FORM

  • Summary judgment in a solemn form action

  • Hayes v Hayes [2008] QSC 6

  • The Court has discretion to give summary judgment if satisfied that:

  • The applicant has no real prospect of success

  • There is no need for a trial of the claim


Proof in solemn form1

PROOF IN SOLEMN FORM

  • Practise points:

  • Get your evidence early

  • Assess and manage client expectations

  • How do you obtain evidence if you are not the executor?


Family provision applications

FAMILY PROVISION APPLICATIONS

  • Special Disability Trust used in an FPA

  • Oswell vJones & Ors [2007] QSC 384

  • Allowed relief to be structured so that the applicant retained her pension benefits, was given financial security but also provided for the beneficiaries under the will


Family provision applications1

FAMILY PROVISION APPLICATIONS

  • Practise points:

  • The Department of Families, Community Services

  • and Indigenous Affairs information booklet “Special Disability Trusts Getting Things Sorted” includes the model trust deed.

  • You will find it on the Department’s website at:

  • www.facsia.gov.au/internet/facsinternet.nsf/disabilities/carers-future_planning.htm


Family provision applications2

FAMILY PROVISION APPLICATIONS

  • Practise points:

  • Consider a Special Disability Trust whenever

  • beneficiary or applicant has a severe disability but remember the rules


Binding financial agreements

BINDING FINANCIAL AGREEMENTS

  • Binding financial agreement in a FPA claim

  • Kozak v Matthews & Messer [2007] QSC 203

  • Kozak v Matthews [2007] QCA 296

  • BFA can be relevant to the relationship of the applicant and the deceased and the reasonableness of the applicant’s expectations


Family provision applications3

FAMILY PROVISION APPLICATIONS

  • In the case at first instance reference was made to

  • Singer v Berghouse where an ante-nuptial

  • agreement was held to be admissible for the limited

  • purpose of showing that the parties thought its

  • terms fair at the time they signed it: in the event

  • of the husband's death the wife could not say she

  • had expectations of a more affluent life than she had lived before the marriage.


Family provision applications4

FAMILY PROVISION APPLICATIONS

  • Practise points:

  • Consider a BFA for the purpose of assisting if there is an FPA claim by spouse

  • Draft on the basis that a Court may be considering the BFA in an FPA claim despite the inability to contract out of making a claim


Binding financial agreements1

BINDING FINANCIAL AGREEMENTS

  • BFA Risks

  • Black v Black [2008] Fam CAFC 7

  • Court held that strict adherence to the legislation is required to oust the Court’s power to make ‘adjustive’ orders


Binding financial agreements2

BINDING FINANCIAL AGREEMENTS

  • Practise points:

  • Highly technical area

  • Pedantic interpretation/application by the Courts

  • High risk for lawyers


Trust deeds

TRUST DEEDS

  • Power to amend trust deed

  • Jenkins v Ellett [2007] QSC 154

  • A narrowly drafted power to amend can cause problems


Trust deeds1

TRUST DEEDS

  • Practise points:

  • Ensure power of amendment is broadly drafted if in accordance with the client's instructions

  • Check your power to amend to ensure it is broad enough for what you want to do


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