DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING

1. DEVELOPMENTS IN SUCCESSION LAW AND ESTATE PLANNING By Kate McQueeney 31 May 2008

2. INTRODUCTION • Proof in solemn form • Family Provision applications • Binding financial agreements • Trust deeds

3. 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

4. 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?

5. 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

6. 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

7. FAMILY PROVISION APPLICATIONS • Practise points: • Consider a Special Disability Trust whenever • beneficiary or applicant has a severe disability but remember the rules

8. 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

9. 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.

10. 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

11. 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

12. BINDING FINANCIAL AGREEMENTS • Practise points: • Highly technical area • Pedantic interpretation/application by the Courts • High risk for lawyers

13. TRUST DEEDS • Power to amend trust deed • Jenkins v Ellett [2007] QSC 154 • A narrowly drafted power to amend can cause problems

14. 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