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|

Attorneys signing BDBNs – an unfortunate twist

Introduction In our September 2018 bulletin we reported on the important Queensland Supreme Court case of Narumon which held that: provided the trust deed does not preclude it, an attorney under an enduring power of attorney is able to affirm an existing binding death benefit nomination (BDBN) made by a fund [...]

2019-11-08T09:39:03+10:00November 7th, 2019|

Will the role of an attorney appointed to act as trustee of an SMSF automatically cease on the member’s death?

Introduction In the absence of a binding death benefit nomination (BDBN), it is the trustee of a superannuation fund who has the discretion as to payment of a deceased member's death benefit. It follows from this, that control of the trustee (whether the trustee be the individual members or a corporate [...]

2019-11-08T09:39:23+10:00November 7th, 2019|

Ademption and Powers of Attorney: Estate Interrupted

Introduction When an adult loses capacity, they will rely upon their appointed attorney to manage their financial affairs. The attorney must act consistently with the duties imposed on them by statute and by common law, both for the benefit of the adult and ultimately the beneficiaries of the adult's estate. However, [...]

2019-11-08T09:39:34+10:00November 7th, 2019|

Death and taxes – risk of personal liability for executors

Background A legal personal representative (LPR) is the person responsible for attending to all tasks required to administer the estate of a deceased person. An LPR has a wide range of duties and must take care to comply with the terms of the will (if applicable) and the relevant legislation when [...]

2019-09-26T11:30:18+10:00September 26th, 2019|
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