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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Presentation Transcript
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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