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