Are there any black sheep in your family?

Posted by: Valerie Chagnon-Couture

In Queensland, a spouse, child or dependant of a deceased person can make an application to the Court for a share of a deceased person's estate on the basis that adequate provision for the applicant's maintenance and support was not made. This is known as a Family Provision Application. A child for these purposes includes a biological child, a stepchild and/or an adopted child. Foster children may also have a claim in certain circumstances. 

Written notice of the intention to claim against the estate must be given to the executors or administrators of the estate within 6 months of the date of death. An application must then be commenced within 9 months of the date of death. It is important to note that the estate should not be distributed by the executors within 6 months of the date of death or executors can be personally liable if a claim is made against the estate.

Where a claim is made against an estate, some aspects the Court will consider include:

1. The size and nature of the deceased person's estate;
2. Whether the deceased had any obligations or responsibilities to applicant;
3. The applicant's financial position, needs, age, health and future prospects;
4. The relationship between applicant and deceased;
5. Whether provisions were made for the applicant during the deceased's lifetime;
6. The deceased's testamentary intentions (memorandum of wishes, letters, etc); and
7. The financial position, age, health and future prospects of the beneficiaries named in the Will.

In the majority of cases decided by the Courts in Queensland, the estate has had to bear the legal costs of both the estate and the claimants against the estate, even where a claimant is unsuccessful in his/her claim. However, some recent cases have seen the Court order unsuccessful applicants to pay the costs of the executor and the separately represented beneficiaries. It remains to be seen whether the Courts will continue this trend in relation to the legal costs of unsuccessful applicants but it does mean many applicants will need to consider the possible legal costs of an unsuccessful claim when making a Family Provision Application.

For further information on family provision applications or for advice on how to protect your estate against such applications, please contact our succession team.

 

 

Agribusiness Monthly

Posted By: Kylie Wilson

The Agribusiness Monthly provides timely information and analysis on agricultural conditions, commodity price updates and commentary on the latest sectoral trends and developments. 

To read the article, CLICK HERE.
 

Legal Alert Is your Superannuation death benefit going where you want it to after your death?

Posted by: Kylie Wilson

On the 25^th of March 2015 the Supreme Court of Queensland delivered a Judgement in the matter of Munro & Anor v Munro & Anor [2015] QSC 61.

The Court declared that a Binding Death Benefit Nomination form signed by Barry Munro was not binding because it did not comply with the terms of the trust deed for the Barry and Suzie Super Fund. 

This meant that the trustees of the Barry and Suzie Super Fund after Barry Munro's death were able to distribute Barry's death benefit at their discretion and not in accordance with the binding death benefit nomination form that had been signed by Barry John Munro on 22 September 2009.

Interestingly, the Court distinguished the well-known case of Donovan v Donovan by determining that although the relevant clause of the trust deed required that a binding nomination comply with the "Relevant Requirements" this did not require the Binding Death Benefit Nomination to comply with Regulation 6.17A of the Superannuation Industry (Supervision) Regulations.  The Court also confirmed that Regulation 6.17A does not apply to Self Managed Superannuation Funds unless the trust deed for the Fund requires that a BDBN comply with that regulation.

Notwithstanding this, Mr Munro's Binding Death Benefit Nomination form directed his death benefit to be paid to "Trustee of my Estate" and the Court determined that this nomination did not comply with the relevant clause of the trust deed for the Self Managed Superannuation Fund as this was not a nomination of either Mr Munro's executors under his Will or any of his "nominated dependants" and was therefore not a binding nomination for the purpose of the relevant clause in the trust deed. 

The case highlights again the importance of ensuring that a Binding Death Benefit Nomination is in fact binding in accordance with the terms of the trust deed of your SMSF if you wish to ensure that your death benefits are to be paid in accordance with that Binding Death Benefit Nomination.

Have you had a $6 haircut ?

Posted by: Scott Thompson

Heard an amusing story the other day about an old barber in a small town. He was the only barber in town and charged $35 a haircut and he took pride in his work and always did a good cut. A new barber moved into town and opened across the street from the old barber. A large sign went up in the new barber's window stating ' $6 haircuts'. The old barber was very concerned and worried about the impact on his clients and business. He had a long think about it and the next day erected a large sign in his window that read 'We fix $6 haircuts'.

I am seeing the $6 haircut equivalent in our legal industry more frequently. Cheap and in some cases, 'free' legal documents online is one example (Wills, Super funds, trusts etc) . Allowing price to be the only determining factor in choosing a lawyer (or a barber for that matter!) is fraught with danger.

I might have to hang a similar sign to that of the old barber out the front of our office!

Our office is your office

Posted by:  Scott Thompson

Our clients enjoy the complementary use of our meeting room facilities. If our clients need to be in the city for a meeting, or just need quiet time, they have the use of our meeting rooms as a valued extension of their office and business. We view this as an additional service to assist our clients and their businesses. 
Some recent examples of client use of our meeting rooms have been

• Hosted shareholder meetings
• Training seminars
• Off-site employee interviews
• Mediation conferences
• Business meetings with accountants and other advisors
• A quiet base while in the city

Our facilities include

• Quiet corporate meeting rooms
• Latest AV and Teleconferencing facilities including Bluetooth conference speakers for your own mobile phone
• Mondopad 50" Touch screen with electronic white board
• Main meeting room seats 12, removal of internal partition expands room to seat 20
• Complementary tea and coffee
• Catering and Secretarial support (available at client cost)

If you would like to be a client of our firm and benefit from that relationship please contact me so that we can discuss what we can do for you.

10,000 hours Business Forum

Posted by: Scott Thompson

 

I attended the Macquarie Bank  10,000 hours Business Forum yesterday. The take aways for me were;

1. 'Digital disruption' will only increase;
2. Change management becoming more focused and a specialised need for successful businesses; and
3. Innovation should be factored as a growth strategy.

The economic forecast summary was that:

1. Business outlook would improve over next 6 to 12 months;
2. Commercial investment market strengthening;
3. Occupancies facing a broader upswing, but still a tenants' market;
4. Lower interest rates are here for longer then initially expected;
5. No signs of recession or downturn for 2015-2016;
6. Brisbane residential to have moderate price growth over next 12 months;
7. No housing bubble likely, especially when our banking standards and capital city house prices are compared to other comparable cities. Still playing catch up.

Always a benefit to share business ideas and appreciate how other industries are travelling.

Thanks MBL

Tristan Jepson Memorial Foundation

Posted by: Scott Thompson

We recognise that law firms are notorious for working long, stressful hours and struggle to balance the incessant pulls of work and life. We also appreciate that health and wellbeing is multi-faceted and diverse; subjectively unique for each staff member. Rather than simply introduce band-aid initiatives such as gym memberships and fruit baskets, we incorporate the well being of staff into the heart of corporate strategy and culture through trust, honesty and fairness.

Focusing on achieving improved mental health, our corporate policy switched to smart growth using enhanced technology processes rather than aiming to grow in size.  Clear respected leadership and identifiable expectations are critical for this development.

This strategy allowed the firm to focus in, instead of out, promoting stable, personal relationships between long standing employees and free up capital to invest in employees' professional and personal development, as opposed to expansion.  Relaxed lawyer budgets, supplying daily healthy breakfasts, offering birthday leave, extended annual leave and work anniversary gifts of appreciation, have fostered a culture of kindness, respect and reduced stress.  Directors also became more accessible to support staff during ever-changing life and career stages, creating a psychologically healthy and socially supportive workplace.

This culture shift became the catalyst for implementing a 100% paperless legal process and remote access working environment, to provide the support and flexibility staff requested to better meet the demands of modern family life or pursue further study, without relinquishing meaningful roles or career advancement. 

We are also pleased to announce the firm has recently become a signatory to the Tristan Jepson MF Psychological Wellbeing Best Practice Guidelines.

The Guidelines are intended to support lawyers, law firms and others working within the profession to raise awareness of mental health issues, and to understand the initiatives and methods of management that assist in the creation and maintenance of psychologically healthy and supportive workplaces.

To view the guidelines click here.