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The Layman as an Estate Planner: The Curse of the Home-Made Will

It is the author’s experience that most clients do not understand the nature of their own asset structures. Commonly, they do not understand the separation of legal and beneficial ownership, trust relationships, superannuation and the rights assigned to those relationships. It is also the author’s experience that many lawyers do not understand these relationships or [...]

By | February 28th, 2018|Uncategorized|0 Comments

The Changing Family Landscape and Modern Family Provision Law

Over time, developments to the testator’s family maintenance (“TFM”) legislation expanded the categories or classes of eligible claimants.[1] In 1936, both New Zealand and Tasmania considered changes to the law to permit claims by ex-nuptial or illegitimate children. Both jurisdictions legislated the issue in 1969.[2] The remaining states and territories legislated the same issue shortly [...]

By | January 29th, 2018|Family Law|0 Comments

Will Drafting Problems for Elderly Clients: Wills and Guardianship Orders

  A person is not prohibited frommaking a Will even if they are subject to an order under the Guardianship and Administration Act 1990 (WA).[1] The guardianship division of the State Administrative Tribunal (“SAT”) is involved in a large number of family disputes over whether or not it is in the best interest for a [...]

By | December 29th, 2017|Estate Planning|0 Comments

The Need for Notional Estate Provisions

The testator’s family maintenance legislation (“TFM”) exists for the purposes of “making of provision for the maintenance of members of a family who are found in need of such maintenance when the family tie is broken by death.”[1] The current model of TFM in Western Australia is governed by the Family Provision Act 1972 (WA) [...]

By | November 29th, 2017|Estate Planning|0 Comments

Can you Contest a Will without Spending More than you Hope to Recover?

It has been said generally that increased costs have become an increasing problem in FPA actions. Mr. Greg Smith MLA told the NSW Parliament in 2008:   “Not only Justice Young has complained, but also the Chief Justice, Jim Spigelman, has complained. In an article in the Australian by Chris Meritt on 26 March 2007 [...]

By | October 30th, 2017|Estate Planning|0 Comments

Crafting a Great Parenting Arrangement After Divorce

In Australia, the law encourages both parents and other people interested in the care and welfare of a child to agree on parenting arrangements, including where and with whom the child will live, how the child will be financially supported and what that child’s  relationship with other family members will be. Indeed, children have a [...]

By | October 9th, 2017|Uncategorized|0 Comments

Puppet Structures and Alter Egos: Creation of a Trusts, and Powers of Appointment to Avoid the Court

People try to use third party asset structures to avoid their assets being attacked from a family law, bankruptcy and testator’s family maintenance perspective (“TFM”). There have been a variety of cases involving inter vivos trusts, which have been used by parties to argue their non-ownership of assets in the Family Court. The same principle [...]

By | September 29th, 2017|Family Law|0 Comments

What is Considered by the Courts When Deciding How to Divide Property After a Divorce

When a couple separates, whether they have been married or in a de facto relationship, they usually need to resolve how to divide their assets, including property, superannuation, debts and other liabilities. […]

By | September 7th, 2017|Family Law, Property|0 Comments

Superannuation Decisions after Death

Poorly Drafted Death Benefit Nominations Superannuation is a trust asset and not an estate asset. Provision for dependents and interdependents are governed by the Superannuation law. In the case of Munro v Munro [2015] QSC 61 the deceased executed a binding death benefit nomination (“BDBN”) in a self-managed superannuation fund (“SMSF”) in favour of the [...]

By | August 29th, 2017|Estate Planning|0 Comments

Pros and Cons of Getting a Binding Financial Agreement

What is a binding financial agreement? The Family Law Act 1975 (Cth) (Family Law Act) provides for parties to a marriage or de facto relationship to enter into a binding legal agreement about the financial arrangements should their marriage or de facto relationship breakdown. […]

By | August 18th, 2017|Estate Planning|0 Comments