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Newsletter for Accountants & Financial Advisors

SPRING 2020

Over the last five years we have seen a significant increase in the challenges and disputes relating to Wills and claims for greater provision out of estates. 

This seasonal newsletter, written for professional service advisors, outlines some of the key issues we are seeing as clients prepare or review their succession planning and asset management strategies, including the interplay between corporate holdings, trusts, superannuation, taxation, administration and probate issues.   Additionally, our leading Wills, Estates and Dispute team discuss common challenges to Wills,  other inheritance proceedings, including tips and risk management approaches to avoid future claims.

Clients & Capacity- Protect your Client (and yourself)

At a glance:

  • As professional advisors, we need to ensure that our clients retain the capacity to provide us with instructions and understand the advice that we are giving at all times.
  • As lawyers, questions surrounding capacity often rear when clients are preparing a Will. The incidence of relatives challenging the validity of a Will on the basis that the deceased person did not have testamentary capacity are on the rise.
  • If you have concerns about a client’s capacity, steps can be taken as an advisor to determine whether further investigation is warranted.  Warning signs and steps suggested are outlined in the article.

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The Future of Testamentary Trusts

At a glance

  • The law relating to testamentary trusts is becoming more complex and open to interpretation.
  • Recent legislative changes mean that testamentary trusts may not maintain all of the advantages they once did.
  • These changes tighten the requirements surrounding the “property” of a testamentary trust, with potential effects on concessionally taxed income (known as “excepted income”) of a testamentary trust.

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Power of Attorney- Stringent Reminders about Protecting the Interests of the Donor

At a glance:

  • Advisors need to ensure their clients who operate under a power of attorney are aware that:
  • all withdrawals are related to the care and benefit of those they have been authorised to look after.
  • they must not affect any transfers that are improvident; and
  • Ensure clients do not exercise their power of attorney in a way that someone gains a disproportionate advantage or suffers a disproportionate disadvantage, of a kind not contemplated by the will of the donor.
  • If a client is receiving property or assets from someone who is known to operate under a power of attorney, they must consider the transaction from the perspective of an honest and reasonable person.

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About Us

Wallmans Lawyers have a specialised Wills, Estate Planning and Estate Dispute Team designed to help clients manage their succession planning process and challenges to Wills and for greater provision out of estates.  Our difference is an integrated team of estate, superannuation and taxation practitioners which allow us to provide tailored and appropriate structures to ensure tax effective estate preparation. We also provide support and assistance in the administration of estates, taking into account all family and business arrangements to enable a streamlined process.

Our dedicated estate litigation practitioners have extensive experience in assisting executors and trustees administering estates the subject of a claim, supporting beneficiaries in defending claims and advising individuals who may wish to bring a claim against the estate or assets of a family member or domestic partner. In doing so, we strive to guide parties towards resolution in order to avoid what can be debilitating financial and emotional costs.

 

Disclaimer

The content of this newsletter is for general information purposes only and should in no way be treated as formal legal advice.