SUCCESSION LAW UPDATE 2009 by Dr John de Groot 30 May 2009 for The UniQuest North Queensland Law Association Conference 2009

INTRODUCTION National Committee for Uniform Succession Laws project: Working for harmonising not uniformity ‘Notional’ estate Intestacy rules

FAMILY 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

WILLS 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 AMENDMENT Relevant to PPFs (now PAFs): Can distribute to non-charities Must be deductible gift recipients (Needed to comply with rule v perpetuities)

ESTATE DISTRIBUTIONS 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 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

SUPERANNUATION Care required: Has a binding death benefit nomination been made? Donovan v Donovan [2009] QSC 26 (16 February 2009)

CONSTRUCTION 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 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 his judgment and that the agreement was admissible for the limited purpose of showing that the parties thought its terms fair at the time they signed it, and in the event of the husband's death the wife could not say she had expectations of a more affluent life than she had lived before the marriage.

IMPACT OF BFAs ON FPAs Kozak v Matthews [2007] QCA 296 It was held that the primary judge had not erred in taking the agreement into account as setting out the basis on which the relationship between the deceased and the applicant had proceeded. The deceased had made it clear that she was not providing further for the applicant and he accepted that position.

IMPACT OF BFAs ON FPAs Manly v The Public Trustee of Qld [2008] QCA 198 Justice Daubney in the leading judgment dismissing the appeal also stated that the 'pre nuptial' agreement entered into between the deceased and the applicant had "considerable bearing on the 'totality of the relationship between 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 a BFA one step further. The court held that the learned primary judge erred in failing to appreciate that the pre nuptial agreement, although not directly decisive, was relevant to the question of whether adequate provision had been made for the applicant in an 8 year relationship. The court held that pre-nuptial agreement was 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