SUCCESSION LAW UPDATE 2009by

Dr John de Groot

30 May 2009

for

The UniQuest North Queensland Law

Association Conference 2009

INTRODUCTIONINTRODUCTION

National Committee for Uniform Succession Laws project:

• Working for harmonising not uniformity

• ‘Notional’ estate

• Intestacy rules

FAMILY PROVISION CLAIMSFAMILY PROVISION CLAIMS

Application out of time:

Frey v Frey [2009] QSC 43 (9 March 2009) factor relevant to court’s exercise of discretion:

1. Whether there was an adequate explanation for the delay

2. Whether there would be any prejudice to the beneficiaries

3. Whether there has been any unconscionable conduct by the applicant

4. The strength of the applicant’s case

WILLSWILLS

Court authorised will (s. 21)

Deecke v Deecke [2009] QSC65 (9 March 2009)

• Lacked capacity because of brain injury

• Quite specific will approved

TRUSTS ACT AMENDMENTTRUSTS ACT AMENDMENT

Relevant to PPFs (now PAFs):

• Can distribute to non-charities

• Must be deductible gift recipients

(Needed to comply with rule v perpetuities)

ESTATEESTATE DISTRIBUTIONSDISTRIBUTIONS

Relevant to FPAs:

Holdway v Arcuri [2008] QCA 218 (1 August 2005)

• PR presumed to deal with assets in a representative capacity

• No ‘assent’ to the distribution

ESTATE BY SURVIVORSHIPESTATE BY SURVIVORSHIP

Joint tenancy issue:

Laursen v Laursen [2009] QSC 30 (6 February 2009)

• Effect of s. 35 Property Law Act 1974

• Proceeds of sale of property owned as joint tenants

SUPERANNUATIONSUPERANNUATION

Care required:

Has a binding death benefit nomination been made?

Donovan v Donovan [2009] QSC 26 (16 February 2009)

CONSTRUCTION ISSUESCONSTRUCTION ISSUES

• “All my belongings” = whole estate

Public Trustee v Alexander [2008] NSWSC 1272 (20 November 2008)

• “to niece upon her attaining the age of thirty (30) years” – trust could be terminated into the rule on Saunders v Vautier

Austin v Wells [2008] NSWSC 266 (28 November 2008)

CONSTRUCTION ISSUESCONSTRUCTION ISSUES

• “to give my money, including any bank accounts that I may hold….” – included units in a managed fund

Kruize v Cheung [2008] QSC 156 (20 June 2008)

SPECIAL DISABILITY TRUSTS

Under review:

Oswell v Jones & Ors [2007] QSC 384 (14 December 2007)

• Can be relevant in an FPA

IMPACT OF BFAs ON FPAs

Singer v Berghouse [1994] 181 CLR 201

It was held that the Master had not erred in hisjudgment and that the agreement wasadmissible for the limited purpose of showingthat the parties thought its terms fair at the timethey signed it, and in the event of the husband'sdeath the wife could not say she hadexpectations of a more affluent life than she hadlived before the marriage.

IMPACT OF BFAs ON FPAs

Kozak v Matthews [2007] QCA 296

It was held that the primary judge had not erredin taking the agreement into account as settingout the basis on which the relationship betweenthe deceased and the applicant had proceeded.The deceased had made it clear that she wasnot providing further for the applicant and heaccepted that position.

IMPACT OF BFAs ON FPAs

Manly v The Public Trustee of Qld [2008] QCA198

Justice Daubney in the leading judgmentdismissing the appeal also stated that the 'prenuptial' agreement entered into between thedeceased and the applicant had "considerablebearing on the 'totality of the relationshipbetween the applicant and the deceased'”

IMPACT OF BFAs ON FPAs

Hills v Chalk [2008] QCA 159

This Court of Appeal judgment takes the use of aBFA one step further. The court held that the learnedprimary judge erred in failing to appreciate that the prenuptial agreement, although not directly decisive, wasrelevant to the question of whether adequate provisionhad been made for the applicant in an 8 yearrelationship. The court held that pre-nuptial agreementwas relevant to the totality of the relationship.

IMPACT OF BFAs ON FPAs

Practise points:

• Consider a BFA for the purpose of assisting if there is an FPA claim by a spouse

• Draft on the basis that a court may be considering the BFA in an FPA claim, despite the inability to contract out of making a claim

• Include item in Checklist

TRENDS/DEVELOPMENTS

• Generally courts tending to be more generous

- Reflect prevailing community attitudes

• More estrangement cases

• Binding financial agreements

• Larger estates

• Costs sensitivities by the court