Presentation on theme: "DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008."— Presentation transcript:
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  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 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 Special Disability Trust used in an FPA Oswell v Jones & Ors  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 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 APPLICATIONS Practise points: Consider a Special Disability Trust whenever beneficiary or applicant has a severe disability but remember the rules
Binding financial agreement in a FPA claim Kozak v Matthews & Messer  QSC 203 Kozak v Matthews  QCA 296 BFA can be relevant to the relationship of the applicant and the deceased and the reasonableness of the applicant’s expectations BINDING FINANCIAL AGREEMENTS
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 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
BFA Risks Black v Black  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 AGREEMENTS
Practise points: Highly technical area Pedantic interpretation/application by the Courts High risk for lawyers
Power to amend trust deed Jenkins v Ellett  QSC 154 A narrowly drafted power to amend can cause problems 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