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+00:00November 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+00:00November 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+00:00November 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+00:00September 26th, 2019|

Granny flats – a lifestyle alternative for the elderly

Introduction Whilst most people express the desire to remain in their own home for as long as they can, for many, moving to some sort of alternative accommodation in later years becomes necessary. This could be the consequence of physical or mental frailty or just the desire for social company that, [...]

2019-09-26T11:08:51+00:00September 26th, 2019|

Generous attorneys: the limits on attorneys benefiting themselves

Generous attorneys: the limits on attorneys benefitting themselves Introduction Section 32 of the Powers of Attorney Act 1998 (Act) provides that an attorney is able to do anything that the principal could lawfully do by attorney (if the adult had capacity for that matter). This means the starting point for considering what powers [...]

2019-03-21T09:25:49+00:00March 21st, 2019|

Re Marsella: the exercise of discretion by a trustee in paying benefits from an SMSF

Re Marsella: Marsella -v- Wareham (No 2) [2019] VSC 65 On the death of a member of a self-managed super fund (SMSF), that deceased member has a death benefit which needs to be paid. When there is no binding nomination in place, the trustee of the SMSF generally (read the deed…) has discretion [...]

2019-03-21T09:20:06+00:00March 21st, 2019|

Help! My husband wants the house but I want to leave it for my children – what are my options?

  Humans are the most complex animal and we regularly make our family structures and lives more complex than ordinary simple estate planning can cater for properly. I am referring to blended families. Not only do interpersonal relationships between the people in the family become more nuanced, but financial structures and testamentary intentions [...]

2019-02-06T09:03:06+00:00February 3rd, 2019|
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