Post on 31-Mar-2015
DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING
By Kate McQueeney
31 May 2008
INTRODUCTIONINTRODUCTION
Proof in solemn form
Family Provision applications
Binding financial agreements
Trust deeds
PROOF IN SOLEMN FORMPROOF 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 FORMPROOF 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 APPLICATIONSFAMILY PROVISION APPLICATIONS
Special Disability Trust used in an FPA
Oswell v Jones & 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 APPLICATIONSFAMILY PROVISION APPLICATIONS
Practise points:
The Department of Families, Community Servicesand 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 APPLICATIONSFAMILY 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 [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
BINDING FINANCIAL AGREEMENTSBINDING FINANCIAL AGREEMENTS
FAMILY PROVISION APPLICATIONSFAMILY 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 APPLICATIONSFAMILY 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 [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 AGREEMENTSBINDING FINANCIAL AGREEMENTS
BINDING FINANCIAL AGREEMENTSBINDING 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 [2007] QSC 154
A narrowly drafted power to amend can cause problems
TRUST DEEDSTRUST DEEDS
TRUST DEEDSTRUST 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