November 2015

01 Nov

Posted at 00:00h in Family Law

First published in Lexology: November 19, 2015 If you control a family trust, it’s not enough to have a Will. You also need a more comprehensive estate plan that determines who replaces you as controller of your family trust in the event that you lose capacity. Each week there are more than 1,800 new cases of dementia diagnosed in Australia. Given these statistics, it is impossible to overstate the importance of planning for incapacity, not just death. Who controls a family trust? “Appointor” is the term used in many discretionary family trust deeds to describe the person who has the power to appoint and remove the trustee.  The appointor is also commonly referred to as guardian, protector or principal.  The person who holds this power will ultimately control the trust. Whilst the position of appointor is commonly associated with the power to remove and replace the trustee, the trust deed can give the appointor other powers.  For example, an appointor or guardian may have “reserve powers” which require the trustee to obtain the consent of the appointor or guardian before exercising certain express powers, say, adding beneficiaries or distributing income or capital to certain specified beneficiaries. For these reasons, it is essential in any estate plan...

01 Nov

Posted at 00:00h in Wills & Estates

From Lexology 31 Jul 2015 Case Review: Burke v Burke [2015] NSWCA 195 Recently, the Court of Appeal of the Supreme Court of New South Wales has given some firm guidance upon community values and expectations when an estranged adult son made an Inheritance Family Provision claim against his mother’s estate Mrs Beryl Burke died a widow aged 93 years. She was survived by her three adult children, Terry, Alan, who was the executor of her Will and Diana. In her Will, the deceased left a legacy of $100,000 to her grandson, Stephen and the residuary of her estate was divided equally between Alan and Diana. She made no provision for Terry with whom she had no contact for about 20 years prior to her death. In a letter prepared before her death, Mrs Burke explained that she had not included Terry in her Will to reflect the fact that he, through his own choosing, was no longer a part of her life, having become totally estranged from the entire family. Terry commenced proceedings in the Supreme Court seeking a family provision order out of Mrs Burke’s estate. It was not disputed that Terry was in financial need. The trial judge found that Mrs Burke was...

01 Nov

Posted at 00:00h in Collaborative Practice

The International Academy of Collaborative Professionals annual forum was held in Washington DC in October 2015. Bev Clark was privileged to attend. The calibre of the speakers was excellent. The international forum is attended by hundreds of collaborative professionals from around the world. This year’s forum was particularly important as it celebrated the 25th anniversary of the process since inception. Bev is very proud to be part of the promotion and development of Collaborative practice in South Australia. Collaborative Practice is a cost-effective, problem-solving approach that can minimise the impact of conflict on parties and their children. Parties are guided and supported by professionals with the right expertise to achieve the best possible outcome. The parties are guided and empowered to make a sound, long-lasting decisions that stand them in good stead for years to come. The Collaborative process preserves their privacy and dignity while giving parties the best possible chance of resolving their dispute respectfully – and the results are legally binding. So why choose Collaborative Practice? Avoid long, difficult and often expensive Court battles Focus on problem-solving and finding respectful solutions Create personal, cost-effective solutions that are right – and tailor-made –  for the family Protect the well-being and needs of the children Maintain decision making...

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