How does one attain a vested interest?

Serwin v Dolso[1] Many older wills include a gift containing a condition like: I give the rest and residue of my estate to Mr Smith provided that if Mr Smith predeceases me or dies before attaining a vested interest, I give the residue to Ms Brown. In this gift clause, what is [...]

2020-05-19T08:30:11+10:00May 19th, 2020|

Appeal fails in Marsella case

Background In March 2019 we reported on the Victorian case of Marsella[1] in relation to the exercise of discretion to choose a death benefit beneficiary by a trustee of a self-managed super fund (SMSF). That case was remarkable because it was the first case where a disappointed beneficiary of a deceased [...]

2020-05-19T08:22:49+10:00May 19th, 2020|

Witnessing wills and powers of attorney by videoconference

Justice Legislation (COVID-19 Emergency Response – Wills & Enduring Documents) – Regulation 2020 (Regulation) The Queensland Government has today published the Regulation setting out how wills and enduring powers of attorney (EPOAs) may be witnessed by video link. The Regulation may be accessed here: https://www.legislation.qld.gov.au/view/whole/html/asmade/sl-2020-0072 The Regulation acts to deem that [...]

2020-05-19T08:42:33+10:00May 15th, 2020|

Video witnessing Queensland wills

Parliaments around Australia are passing new legislation to help the wheels of commerce turn during these difficult coronavirus times. Succession law has also had considerable difficulties in dealing with the quarantine and isolation restrictions when signing and witnessing wills and powers of attorney. A will needs 2 independent witnesses and a [...]

2020-04-24T13:39:11+10:00April 24th, 2020|

Beware undue influence presumption between parent and child

In a recent decision of the Court of Appeal in Queensland, the Court has provided some much needed clarification around the undue influence presumption in section 87 of the Powers of Attorney Act (PoA). Under the PoA, any transaction between the principal named in an enduring power of attorney and the [...]

2020-04-06T10:49:13+10:00April 6th, 2020|

Breach of repair and maintenance obligations does not lead to the forfeiture of a life interest

In the recent case of Nomchong -v- Vey-Cox the Court considered whether a life interest was forfeited when the life tenant (i.e. the beneficiary of the life interest) failed to comply with their obligation to repair and maintain the property. The will used reasonably common drafting in setting up a life interest and [...]

2020-04-06T10:41:41+10:00April 6th, 2020|

Bernard & Bernard – the Family Court examines the protection provided by testamentary trusts

Asset protection generally All asset protection is a compromise between protecting assets and retaining control and enjoyment of those assets. Asset protection spectrum Complete control and enjoyment = no asset protection Example: you own the asset legally and beneficially, e.g. family home No control or enjoyment = excellent asset protection Example: asset owned [...]

2020-04-06T10:38:19+10:00April 6th, 2020|

Potential national reforms for Enduring Powers of Attorney

Background The Federal Attorney-General Department released a consultation regulation impact statement (RIS) a few days ago which considers options for reform to Enduring Powers of Attorney (EPOAs) on a national basis. The RIS considers options for streamlining access to information about EPOAs all with the intention of reducing uncertainty regarding whether [...]

2020-03-11T09:42:39+10:00March 10th, 2020|

When will the Court assist the family trust?

Application of Country Road Services Pty Ltd (in the matter of the Browne Family Trust) [2019] NSW SC779 The Trustee Act 1925 (NSW), similar to most Trust Acts in Australia, allows the trustee of a family trust to approach the Court for an order that the trustee has the necessary power to undertake [...]

2020-03-11T09:42:48+10:00March 10th, 2020|

Executors: seeking commission for your “pains and troubles”

Background Acting as the executor of a deceased estate can be time-consuming and onerous. In the majority of cases, the person appointed as executor is a family member (and often also a beneficiary of the estate) and is happy to take on the role without seeking any payment for their time [...]

2020-03-11T09:42:59+10:00March 10th, 2020|
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