developments in succession law and estate planning by kate mcqueeney 31 may 2008
TRANSCRIPT
![Page 1: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/1.jpg)
DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING
By Kate McQueeney
31 May 2008
![Page 2: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/2.jpg)
INTRODUCTIONINTRODUCTION
Proof in solemn form
Family Provision applications
Binding financial agreements
Trust deeds
![Page 3: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/3.jpg)
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
![Page 4: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/4.jpg)
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?
![Page 5: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/5.jpg)
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
![Page 6: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/6.jpg)
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
![Page 7: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/7.jpg)
FAMILY PROVISION APPLICATIONSFAMILY PROVISION APPLICATIONS
Practise points:
Consider a Special Disability Trust whenever
beneficiary or applicant has a severe disability but remember the rules
![Page 8: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/8.jpg)
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
![Page 9: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/9.jpg)
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.
![Page 10: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/10.jpg)
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
![Page 11: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/11.jpg)
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
![Page 12: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/12.jpg)
BINDING FINANCIAL AGREEMENTSBINDING FINANCIAL AGREEMENTS
Practise points:
• Highly technical area
• Pedantic interpretation/application by the Courts
• High risk for lawyers
![Page 13: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/13.jpg)
Power to amend trust deed
Jenkins v Ellett [2007] QSC 154
A narrowly drafted power to amend can cause problems
TRUST DEEDSTRUST DEEDS
![Page 14: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/14.jpg)
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
![Page 15: DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008](https://reader036.vdocuments.mx/reader036/viewer/2022062511/551ad75155034656628b63bc/html5/thumbnails/15.jpg)