Govt backsdown on backpacker tax

Posted by: Scott Thompson

 

Great news for our rural clients that rely on backpackers for seasonal labour.

ABC News Release

Changes to Retail Shop Leases Act - what does it mean?

Posted by Denis Stephenson

The Retail Shop Leases Amendment Act 2016 (Qld) (Amendment Act) has been passed by the Queensland parliament.

It hasn’t commenced as yet and will commence on a date to be proclaimed. Commencement is expected to occur before Christmas 2016.

Both lessors and lessees need to understand the changes.

Lessors need to review and amend their leases and procedures so that they comply with changes as soon as the Amendment Act commences. Leasing agents/managing agents also need to be updated and understand the changes.

Obligations surrounding disclosure requirements are one of the key changes made by the Amendment Act.  These include new disclosure requirements and consequences of failure to make disclosure. For example, where a lessee exercises an option to renew in a lease:

• The lessor will now have to give a current lessor disclosure statement to the existing lessee within seven days of receipt of the lessee's notice of exercise of the option.

• The lessee may within fourteen days of receiving the current lessor disclosure statement, whether or not their renewed lease period has commenced, give the lessor a written notice stating that the notice exercising the option is withdrawn. The lessee does not need to give any reasons.

• If the lessor does not give a current lessor disclosure statement or the current lessor disclosure statement is defective the lessee may within six months after the commencement of the option period terminate the retail shop lease.

Further changes include where upon an assignment both the lessee and the lessee's guarantors will now be released from liability where the conditions set out in the Retail Shop Leases Act have been satisfied. Previously the lessee's guarantors weren’t released.

Requirements with respect to recovery of outgoings by lessors have been "tightened". In addition a lessee will have the right to withhold payment of outgoings until the estimate or audited statement is given by the lessor.

The above mentioned changes are only a few of the changes that will occur on the commencement of the Amendment Act. The Amendment Act will have the effect of further regulating retail leasing.

If you have any questions in relation to the changes please contact Denis Stephenson of our office. 

Roadshow proves to be priceless for family communication

Posted by: Kylie Wilson

I enjoyed getting out with the crew from Resource Consulting Services and Entello Group for another succession and continuity roadshow last week, this time for Mitchell, Miles and Goondiwindi.

Fantastic inroads were made with many of the participants in relation to the importance of early planning and communication.  

Most of the participants labelled the day "priceless" and some of the comments and feedback we received from the roadshow sessions included:

"Very informative and interesting"

"Enlightening" 

"Invaluable to have people who have succeeded in using the process"

"Great introduction to facilities to help with process"

As with our previous roadshow in central Queensland in February of this year, it is was very eye opening for both generations participating in a workshop session identifying the aims of the "older" generation and the "younger" generation.  As with every one of the sessions that have been conducted to date, the top aims for both generations in relation to desired outcomes of succession planning very closely reflect each other, with financial security and family harmony often at the top of the list for both generations. 

Achieving a successful succession of a rural family business, with the older generation able to retire comfortably and the younger generation able to take on a viable business, is crucial to achieving the goals both generations continue to indicate are a priority.  To achieve this requires careful, and often long term, planning and honest communication about needs and expectations.  Practical examples of both the good and the ugly of rural succession planning from the Lawrie family and Claudia Power and John Moore of RCS was again invaluable in helping to get this message across.  Entello group also discussed some very insightful options to enable off farm investments to assist in funding parents' retirements.  

The plan is to do this again in North Queensland later in the year and I'm looking forward to catching up with clients up north again. 

Changes to transfer duty for primary producers in Qld - What does it mean?

Posted by: Kylie Wilson

From 1 July 2016, significant changes were made to the Duties Act (Qld) in respect of intergenerational business property transfers for primary producers.

Prior to this change, a transfer of primary production land to the next generation was only exempt from duty to the extent that it was by way of gift and there was no "consideration".  In practice, because consideration under the Duties Act includes the assumption of debt, where the next generation refinanced a loan in the course of being gifted the land, the amount of the relevant debt was dutiable.

From 1 July 2016, section 105 of the Duties Act was amended such that the dutiable value of business property which is used to carry on a primary production business is taken to be nil.  This means that, provided the other requirements of the relevant part are met, a transfer of intergenerational farming land and personal property to the next generation will not attract duty, whether debt is assumed in the course of the transaction or not. 

A practical and basic example of the advantages for primary producers of this change is illustrated by the case study below.

Duty or no duty?

Jack and Jill are in their late sixties and wish to retire, giving control of their primary production property (beef cattle) to their eldest child, which includes primary production land with a total value of approximately $20 million. 

Associated with the transfer of this property, their son will need to refinance the existing debt of $5.4 million. 

Pre-1 July 2016, the $5.4 million assumption of debt would have been regarded as consideration with duty payable to the Office of State Revenue of over $290,000.

The same transaction from 1 July 2016 no longer incurs duty, a saving of well over a quarter of a million dollars in transaction costs.

Care still needs to be taken to ensure that all the requirements for the concession are met, in particular meeting the definition for defined relative (in respect of the transferor) and ensuring that the transferee does not take the land as trustee of a trust. 

A further budgetary measure that was announced by the Queensland government at the same time as this duty change was the grant of up to $2,500 to seek up-to-date and best practice information on financial management, mitigating climate risks, succession planning and multi-peril crop insurance options.   Detail on this grant is not as yet fully available but is expected to be announced in the near future.

If you have any questions in regard to the changes to duty for primary producers, please contact Kylie Wilson of our offices.

Litigants know your enemy!

Posted by: Dale Ellerman

It is an important step when involved in legal proceedings in the Planning and Environment Court to understand who your opponents are and to consider their legal status. 

This point was demonstrated recently in Urban Potentials Pty Ltd v Southern Downs Regional Council & Anor in which the court held a submission made by an entity purporting to be an unincorporated association was in fact made individually by the list of persons who had signed the group submission. 

The court made orders removing the unincorporated association as a party to the appeal instead allowing the individual submitters a chance to elect to join the appeal out of time. 

As it transpired, none of the many individual submitters took up the opportunity to join the appeal and the case effectively "shrunk" accordingly.  

A link to the case is attached for anyone interested.  To view the case click here. 

Badenach v Calvert [2016] HCA 18

Posted by: Kylie Shaw

Jeffrey Doddridge had been recently diagnosed with a terminal illness and wished to amend his will so as to leave the entirety of his estate to the son of his long term partner, Mr Calvert.

In 2009, Mr Doddridge approached Murdock Clarke Solicitors, a firm who had prepared his previous wills, and asked to have a new will drawn up accordingly. Mr Doddridge owned two properties which he owned as tenants in common in equal shares with Mr Calvert.

Following Mr Doddridge's death in 2010, and with no provisions preventing otherwise, a claim was made by his estranged daughter seeking control of her father's interests in any property. The daughter's claim succeeded and she was awarded a significant amount of her father's estate.
As such, Mr Calvert filed a claim against both the solicitor, Robert Badenach, and the firm who had prepared the will.

Although initially succeeding in the Full Court of the Supreme Court of Tasmania, the claim ultimately failed and was dismissed by the High Court of Australia.
The Court had previously held that a beneficiary to a will may make a claim where his interests and the interests of the testator align completely, such that by working in the best interests of a client a solicitor could also be considered to be working in the best interests of the beneficiary. The Court held that as the duty of Mr Badenach was to advise Mr Doddridge in relation to all options available to him, even if said options worked against the interests of Mr Calvert, that the two interests did not align and no claim could be made.

The Court also found that although Mr Badenach should have enquired as to the existence of another family member,
it was impossible to say whether Mr Doddridge would have been able to provide enough evidence in order for him to fully advise on the likelihood of a claim. Further, the Court found that even if Mr Doddridge had been able to provide all the relevant information, it could not make an assumption as to how Mr Doddridge would react. As such the High Court found that although the solicitor may have breached his duty it was not possible to show that without that breach no damage would have been incurred by Mr Calvert.

This case highlights the importance of discussing options with your solicitor when making a Will, particularly when it comes to considering potential claims against your estate.

Superannuation and small business in the 2016 Federal Budget - what does it mean for you?

Posted by: Kylie Wilson

In the Budget last night Scott Morrison announced some big changes to superannuation and a tax cut for small business companies.  Some of the changes to superannuation were unexpected and are likely to cause a rush on an adjustment of planning strategies for some who are already in pension phase.

Superannuation key points

The key changes announced for superannuation include:

• A cap will apply to the transfer of superannuation balances into retirement phase from 1 July 2017. Those in pension phase now do not receive the benefit of any grandfathering provisions.  Therefore existing tax-free pension phase superannuation balances over $1.6 million will have to be transferred back to accumulation phase and will be subject to a concessional 15% tax rate.
• In a largely unexpected move, concessional contribution caps have been lowered to $25,000 (previously $30,000 for those under 50, and $35,000 for those 50 and over) to be introduced from 1 July 2017.
• Non-concessional contributions will have a lifetime cap of $500,000 from last night.  This is a lifetime cap as opposed to a previous annual cap of $180,000 or for those using the bring-forward rule, up to $540,000 in a three year period.
• The tax offset of up to $500 on concessional superannuation contributions for low income earners continues (although renamed).
• The ability for people under the age of 75 to make concessional contributions to superannuation has been significantly extended, and people aged under 75 will no longer have to satisfy the work test to be able to receive contributions from their spouse.
• From 1 July 2017, the 10% rule that has applied to claiming a tax deduction for personal superannuation contributions will be removed.
• From 1 July 2017, the Division 293 threshold will be reduced from $300,000 to $250,000 (a largely expected move).
• A rollover of unused concessional contribution caps will be made available from 1 July 2017, which will allow individuals to make additional concessional contributions for years where they have not previously reached their concessional contributions caps.  This will apply to people with superannuation balances of less than $500,000 and may be helpful for people who have had interrupted work patterns.  It should be noted, however, that amounts will carry forward on a rolling basis for a period of five consecutive years, and only unused amounts accrued from 1 July 2017 can be carried forward, which does restrict the effectiveness for many of those with interrupted work patterns; and
• From 1 July 2017, the Government will repeal anti-detriment payments.

So far the industry response has been mixed, with the most significant criticism revolving around the reduction of the concessional contributions cap to $25,000.

 

Small business key points

• From 1 July 2017, company tax relief will apply for small and medium sized businesses, with the company tax rate for businesses with an annual turnover under $10 million cut to 27.5%. 
• The Government has announced a plan to progressively reduce this tax rate to 25% by 2026/27.
• All small businesses with a turnover of less than $10 million will also be eligible for the instant tax write-off for equipment purchases of up to $20,000 made next financial year.
• To help fund the above, the Government has announced, in relation to multinationals, that the ATO will receive an extra $679 million to hire further staff to form part of a 1,000 person team to monitor multinationals, with any moneys that are planned for shifting off-shore to be taxed at a higher 40% tax rate.

Succession Roadshow - RCS Article

Posted by: Kylie Wilson

The RCS Succession & Continuity Planning Roadshow in central Queensland took place at the beginning of this year. Claudia Power from RCS has posted an article in their latest newsletter "How to run an effective family succession meeting" including my comments.

Click here to read more.

Have you reviewed your industry or public superannuation fund's policy in relation to death benefits recently?

Posted by: Kylie Wilson

Under superannuation legislation, if you do not have a valid binding death benefit nomination that directs the trustee of an industry or public superannuation fund as to where you want your death benefits paid from that fund on your death, the trustee has a discretion to make payments to any one or more of the following:

1. your spouse;
2. your children;
3. financial dependents;
4. any person with whom you have an interdependency relationship; and
5. your legal personal representative (your estate to be dealt with in accordance with the terms of your Will).

However, in recent times public funds have been changing their policies in relation to how they deal with a member's death benefits.
For example, Zurich recently notified members that although Zurich would previously decide who, of a member's dependents and legal personal representative, would receive a member's death benefits not covered by binding death benefit nomination, their new policy from 1 July 2016 will be that any part of a death benefit not covered by a binding death benefit nomination valid under superannuation law at the time of death will be paid to the member's estate. This policy already applies to new members from 21 December 2015.
Further, if the estate is insolvent, or if the legal personal representative cannot be identified within six months, the benefits will be paid to spouses, or, if there is no spouse, to the member's children, with payments made in equal shares where applicable.

Zurich is therefore changing its policy, where there is no valid binding death benefit nomination at the time of death, to specifically prescribe where the death benefit will go, which may not be the best outcome, particularly in circumstances where the estate may be subject to a family provision application after the member's death. 

It is essential therefore that members of public and industry funds understand the current policy of their public or industry fund in relation to how their death benefits will be paid to ensure that the treatment of those death benefits aligns with their estate planning aims.

For further information, contact Kylie Wilson or Kylie Shaw.

Rural Succession Planning - Where to start?

Posted by: Kylie Wilson

I had the privilege of being included in the succession and continuity roadshow in central Queensland, organised by RCS, for the purpose of providing information to primary producers on the best options available to ensure smooth succession and ongoing continuity and viability of their intergenerational businesses.

An interesting part of each section of this roadshow was an exercise that was run and facilitated by Claudia Power of RCS, where each generation was split into two groups: those that consider themselves part of the "older" generation and those that consider themselves part of the "younger" generation.

Effectively, regardless of age, the older generation being those that currently control the business, and the younger generation being those that are working in the business with an aim to ultimately succeed to control of that business.

What was interesting out of that exercise was that in each of the three sessions that were conducted in Emerald, Biloela and Rockhampton, two main themes came through from both generations as their main priority:

1. family harmony; and
2. financial security.

So both generations' top two priorities from each of the sessions by and large exactly mirrored each other.  Why then are there so many difficulties with rural succession being completed in a way that ensures that families both stay together and stay on the land?

There are many answers to this, depending on each respective business and the dynamics of each respective family.  Having said that, one overwhelming issue that came up again and again from both generations was communication.  The older generation not always expressing to the younger generation the status of the business, the liabilities, the exact nature of the income and expenses and how the business is conducted as a whole.  The younger generation not communicating their expectations, their thoughts and ideas on growing the business or their desire to know more about the ins and outs of the entire business.  In failing to communicate these things, each generation is disadvantaging the business by removing from the business two important elements:

• the passing on of wisdom, in a way that occurs over time and in an educated fashion, and allows a younger person to grow and develop in, and with, the business; and
• a loss of the injection of youthful enthusiasm and ideas into the business.

While these problems are not always universal, it is also not uncommon for parents to focus very much on growing the business in a way that they think will benefit the next generation, with little long term planning given to how their retirement will be funded when they exit the business.  In addition, children often want to try to meet what they see as their parents' expectations, without ever actually asking their parents what their expectations in fact are, or expressing what the children actually want.

Therefore, what was clear from the succession roadshow is that the very first step of any succession planning needs to be for all parties involved to identify first and foremost as individuals what it is that they want, both in the business and in life.  Without an understanding of what it is that they want, it is impossible to appropriately plan for it, and ascertain whether what is wanted can be achieved during the succession process.  You cannot set goals to achieve anything in life without knowing what it is you actually want to achieve. 

In summary then, the best approach to starting a succession plan for rural families is for each family member to identify what it is they want and communicate that, openly, honestly and without judgment,  with all the stakeholders in the business.  Then a flexible plan can be put in place to achieve the aims that work for everybody if those "wants" are achievable.  The more planning, time and communication that is put into the succession process, the more likely that the two main aims of family harmony and financial security will be achieved.  Ultimately, each generation wants the same thing, and with proper communication and planning, achieving that does not need to be difficult.  

Spencer v Burton (2015) QCA 104 Case Summary

Posted by: Kylie Shaw

Background

In the case of Spencer v Burton [2015] QCA 104, Sharon Burton and Kent Spencer were in a romantic relationship for 13 years, however, those 13 years were not perfect. Kent had an affair in 2009 which resulted in an end to their relationship but they later reconciled.

In November 2010, Sharon was diagnosed with cancer and passed away in July 2012. They were never married and had no children during the course of their relationship.

At the time of Sharon's death, her estate was worth approximately $800,000.00. Sharon did not have a will. This meant she died intestate and that led to serious complications.

On 12 August 2012, Kent obtained Letters of Administration on Intestacy of her Estate on the basis that he was the deceased's de facto partner.

Five months later on 7 December 2012, the deceased's mother, Daphne Burton filed an Application seeking a declaration that Kent Spencer was not a de facto partner of the deceased and also sought orders that the Letters of Administration on Intestacy granted to him be revoked and that a replacement grant of Letters of Administration by granted to her.

The court takes account of several factors in determining whether a person is a de facto partner and this is where complications can arise. It can be very difficult in weighing up and balancing the competing factors which include:

• Nature and extent of their common residence;

• Length of their relationship;

• Whether a sexual relationship existed;

• Degree of financial dependence or interdependence, and any arrangements for financial support;

• Ownership, use and acquisition of property;

• Degree of mutual commitment to a shared life including care and support of each other;

• Performance of household tasks;

• Reputation and public aspects of their relationship.

Decision in the principal proceedings

In the principal proceedings, the Court found the respondent, Kent Spencer, had not been the de facto partner of deceased, under s32DA Acts Interpretation Act 1954 (Old) and was thus not entitled to share in estate on intestacy. The Court also revoked the Grant of Letters of Administration in favor of the Deceased's mother, Daphne Burton.

Decision on Appeal

On Appeal, the Applicant Kent Spencer argued that the primary judge erred in the application of the criteria set out in s 32DA of the Acts Interpretation Act, in particular attributed greater weight to financial and property matters.

The Appeal Court stated that the criteria in s 32DA are all to be weighed up and analysed together with any other factors or circumstances that the judge considers relevant. One criterion is not to be considered as more significant than the other.

The Appeal Court found the primary judge did place an overemphasis on financial and property matters and a discounting of the other indicia which was clearly present. Appeal was allowed.

The outcome of this case shows that the relevant factors in determining whether a de facto relationship exists is complicated and each situation must be considered on a case by case basis. There is no ‘one size fits all’ solution.

All this came about primarily because Sharon died without a valid Will.

Superannuation death benefits continue to be problematic for executors - Brine v Carter [2015] SASC 205

Posted by: Kylie Shaw

Professor Brine was in a de facto relationship with Ms Carter when he passed away. His Will named Ms Carter, along with his three adult sons from a previous relationship, as joint Executors of his Estate.

In his will, Professor Brine provided a life interest for Ms Carter in his principal residence and another property and gave the rest of his estate to his three sons and grandchildren.

Professor Brine had two superannuation accounts with UniSuper. One account was structured so that the only beneficiary of that superannuation could be a spouse. The second was an accumulation account from which a spouse, child, dependant or the member’s Estate could benefit.

Rather than making a binding death benefit nomination with UniSuper, Professor Brine had written a letter to them expressing his wish for the beneficiary of his superannuation to be his Estate. This was recorded with UniSuper however, given the form it was in, it was not enforceable.

Ms Carter learnt of the two superannuation accounts following Professor Brine’s death, and made applications to UniSuper to have the balance of each account paid directly to her.

For some months, Ms Carter was found to have failed to disclose the extent of the super benefits to the three sons and that the estate and each of them was a potential beneficiary of one of the accounts.

Once the sons found out about the super and the potential to claim, the three sons claimed the benefit as executors of the estate. Notwithstanding their claim, UniSuper exercised its discretion in favour of Ms Carter.

The Court found that, despite the misrepresentations made by Ms Carter and breach of her fiduciary duties as an executor up to the point in time when the three sons discovered her deceit, thereafter the actions of the sons in making a claim on behalf of the estate (without Ms Carter's involvement) effectively meant that they had accepted that she was not acting as an executor in the matter so that she was therefore entitled to pursue her claim for payment in her own personal capacity and not as a co-executor. Since she was no longer acting as an executor, she was therefore not in breach of her duties as such, and therefore was entitled to receive the payment herself without having to account to the estate for it.

Ironically, if the three sons did not make a separate competing claim (which effectively operated as a consent to Ms Carter claiming in her own right), she would have been held to be in breach of her duties as an executor and would have had to pay the money to the estate. As a result, despite Ms Carter's dishonest conduct, she won the case.

This case illustrates the importance of a valid binding death benefit nomination if you have specific wishes as to how your death benefit should be paid by the trustee of the Fund, as well as some of the issues that arise for executors who are also beneficiaries in claiming those death benefit payments.

Solicitor's duty to intended beneficiaries

Posted by: Kylie Shaw 

The High Court will hear an appeal against a decision of the Supreme

Court of Tasmania on the professional duties of lawyers in the context of a will dispute. The appeal is scheduled to be heard on 2 March 2016.

This case concerned the possible duties of a solicitor, when preparing a will for a client to take instructions and give advice as to the circumventing of the provisions of Testator's Family Maintenance Legislation ("TFM").

In Calvert v Badenach [2015] TASFC 8, Mr Badenach, a solicitor, took instructions to prepare a will for Mr Doddridge (the deceased) who at the time, was terminally ill. The deceased’s instructions were to pass his entire estate to his step son, Mr Calvert. Mr Calvert was the son of the deceased's long-term partner. However, when the deceased died six months later, the Mr Calvert did not receive all of his half-share of two real estate properties the pair owned, because the deceased's long estranged daughter successfully sued the estate under Tasmania’s family maintenance statute for $200,000 (and also recovered the costs for her action from the $600,000 estate.)

So, Mr Calvert sued the solicitors who prepared the deceased's will in 2009, arguing that they should have advised the pair about the possibility of such a turn of events, which could have been avoided by converting the pair’s shared ownership in the properties from ‘tenancy in common’ to ‘joint tenancy’ (so that the deceased's half share would have gone directly to the Mr Calvert, rather than via his estate).

Mr Calvert was unsuccessful at first instance. The decision was appealed and Mr Calvert was successful.

On appeal all three judges agreed that the Solicitor owed a duty of care to the deceased not only to enquire of the deceased whether he had any children, but to advise him why the enquiry was being made, the potential for a family provision claim, the impact it would have on his wishes, and any possible steps he could consider to avoid that impact. In the circumstances the solicitor's duty extended to not only asking questions that might elicit the existence of possible claimants but to advising about mechanisms to minimise the estate available to meet any claim.

Their Honours all agreed that this was a case of loss of opportunity or chance.  The Solicitor's negligence caused Mr Calvert to lose an opportunity to obtain a better outcome.

Final Day - Rockhampton, Succession Roadshow

Posted by: Kylie Wilson 

We had the last day of the very successful succession and continuity roadshow in Rockhampton on Thursday.  There were some interesting questions in relation to keeping the business separate from high value assets like land, and Frank Ricci of Entello Group, at the request of one participant, spent some time explaining the ins and outs of off-market shares. 

Almost all of the Lawrie family attended the Rockhampton session, and again told participants their courageous story of overcoming distrust and emotional heartache to come through the succession process as a very close-knit, happy and supportive family. 

Claudia Power again imparted her amazing wisdom, having been through a very difficult situation with her father's Will, both as a young child and later with the succession process as a young woman.  This has taught her the importance of succession planning early and she has used those skills for her own immediate family succession in more recent years. 

John Moore from RCS gave some really valuable tips to participants arising from the lessons he's learned in his own very difficult succession process as a grazier and farmer of a multigenerational primary production business in South Africa.  Kate Murfet of RCS spent most of the roadshow with us and is one of the nicest and most creative people I've ever met. 

Frank Ricci, Tony Garnham and Belinda Piccirillo, all from Entello Group, provided some fantastic advice to primary producers about the options for off-farm investments, a very important consideration if succession planning is to progress smoothly.  I have to say, if I ever dab my toe in the share market again, these guys will be the first people I call. 

Andrew McCormack of Best Wilson Buckley Family Law not only did a great job of overcoming many participants' initial prejudice about financial agreements, by showing clearly the advantages for both parties in a relationship of having clarity, rather than the uncertain and expensive process of having a family court decide, in the event of a marriage breakdown.  He also imparted some absolute gems from his role as executor, in one case in relation to a Will that had not been updated appropriately, causing a huge amount of distress to the beneficiaries left behind.  It again highlighted the importance of ensuring that Wills are updated on a regular basis and further, that a Will is only part of the succession plan - it should never be the entire succession plan.

I have to say that it has been an absolute pleasure and a privilege to work with so many wonderful and inspiring people, both my fellow presenters during this roadshow, and the committed families who came for the purpose of obtaining information on how to transition multigenerational businesses while maintaining family harmony.

I'm now on the long road from Rocky to Brisbane and I have just passed, quite seriously, the longest coal train I've ever seen in my life, and I have seen rather a lot of them in my time.  The mining boom might be over but between the coal trains and the explosive trucks I've passed, it is clear that the process of mining itself up this way is still continuing. 

I have very much enjoyed my time in central Queensland and am now looking forward to getting home.

Day 4 - Succession Roadshow, Biloela Session

Posted by: Kylie Wilson 

The Biloela session of the rural succession and continuity roadshow saw good numbers again comprised of families wanting to demystify the tips and traps of rural succession planning.

John Moore of RCS gave some very interesting insights into being a sixth generation farmer on the land in South Africa.  There were also quite a few questions and concerns around the issues of gifting land to the next generation, and the duty implications where Queensland continues to remain behind the other states in assisting primary producers to pass land so the next generation can remain on the land.

The themes of lack of communication and a desire to maintain family harmony continued and reflected those that we'd heard in Emerald.  Aims of getting started early and achieving security whilst ensuring a comfortable retirement for parents also came through strongly from the younger generation. 

We then headed out on the road again for Rockhampton.  Another interesting and informative session in Rockhampton awaits before the long trip back to Brisbane.

Day 3 - Succession Roadshow, First succession and continuity session in Emerald

Posted by: Kylie Wilson

We had the first day of our succession and continuity roadshow in Emerald with RCS, Entello Group and Andrew McCormack of BestWilson Buckley Family Lawyers.

The session was very well attended, and there were some very impressive discussions from Simone Lawrie of the Lawrie family and Claudia Power about their own personal succession journeys, which illustrated how positive it is for families if the succession process is done properly.


RCS gave some good insights on how to get family meetings started and keep them progressing, Entello Group provided some valuable share tips, and Andrew McCormack talked about the advantages of binding financial agreements where there are concerns about marriage breakdown during the succession process.

It was a great pleasure for me to speak to so many committed families, with the overall message of the day from participants being an aim for family harmony in achieving intergenerational transfer.

After the completion of the Emerald session, we all set off in cars for the trip from Emerald to Biloela, where the land continues to look in very good shape, and I'm looking forward to talking to more families in Biloela on Wednesday.

Aims of older generation vs younger - some very similiar

Homemade Wills can be very costly

Posted by: Kylie Shaw

Homemade Wills can be very costly to your loved ones and may result in your wishes and directions not being followed. Increasingly, we are seeing applications to the Court in relation to Wills that do not comply with the necessary requirements to be a valid Will [known as an informal Will].

Recently, the Queensland Court of Appeal considered an application for approval of an informal Will for the first time, in Lindsay v McGrath [2015] QCA 206.

In that decision, the Queensland Court of Appeal determined that an informal document which stated “… for the purpose of making the Will of Nora Priscilla Lindsay” was not a valid Will.

As a result, the Will could not take effect and the Nora Lindsay’s wishes in the document could not be carried out.

In this case, Nora Pricilla Lindsay had two children, her son, Geoffrey Lindsay and her daughter, Heather McGrath.

Nora decided to make a document herself which looked very much like a Will leaving the bulk of her estate to her son, Geoffrey. She specifically provided for why her daughter, Heather should not receive anything from her estate and provided the reasons why she was disinheriting her.

Nora Pricilla Lindsay died on 16 October 2012 and two court cases later, the Court held that the document was not a Will.

At first instance, the primary judge found that whilst the handwritten document contained a bequest of Nora’s property to her son, Geoffrey, that statement in itself was insufficient to satisfy the requirements of a valid Will.  The primary judge formed the view that the document was to be "for the purpose of making the Will" rather than the Will itself.

The issues with the document were highlighted as follows:

1. First, the document contained the words "for the purpose of making her Will";


2. The handwritten document did not accord with Nora's conversation that she had with her son Geoffrey in 2008 that she was leaving "everything" to him. There were specific exceptions attached to the document but they had been torn off from the document;


3. There were alterations contained in the document;


4. The document did not deal with all of Nora's estate;


5. Nora wrote her name but was not in the form of a signature; and


6. The document was not witnessed.

On Appeal, the court found that the evidence placed before the primary judge, at best, established that it was Nora’s intention that her son, Geoffrey receive the benefit of her estate with her daughter Heather to receive nothing. However, the evidence did not establish, that the handwritten document, in that form, was intended by Nora to form her last Will. The Appeal was dismissed.

As Nora had revoked her previous Will, her children shared equally in her estate pursuant to the laws of intestacy.

Although preparing an informal Will might sound like a cost effective way to prepare your Will, there is no guarantee the document will be valid. Making an application to the court to validate a will which does not comply with formal legislative requirements is very costly and far exceeds the costs of having a Will prepared in accordance with the legislative requirements.