Einstein’s prenup: … and holidays in Malibu**(?)

Previous View posts have looked at various cases where a binding financial agreement (BFA) has been held to be ineffective.

BFAs can be entered into at the start of a relationship (that is, a traditional ‘prenup’), at any time during the relationship (‘midnup’) or once the relationship has ended (‘postnup’).

While we see BFAs add value as prenups and postnups, perhaps understandingly we see few midnups successfully assist. Indeed we are aware of many situations where one spouse raising the idea of a midnup has been a catalyst for the ending of the relationship.

One of the highest profile examples of this is given by Albert Einstein.

According to biographer Walter Isaacson, as Einstein and his wife Mileva’s relationship deteriorated, they decided to try and stay together for the sake of their children.

Part of Einstein's approach involved him setting out a list of 'conditions' his wife needed to accept in writing (ie a form of early 20th century ‘midnup’), as follows:

A. You will make sure:

1. that my clothes and laundry are kept in good order;
2. that I will receive my three meals regularly in my room;
3. that my bedroom and study are kept neat, and especially that my desk is left for my use only.

B. You will renounce all personal relations with me insofar as they are not completely necessary for social reasons.

Specifically, you will forego:

1. my sitting at home with you;
2. my going out or travelling with you.

C. You will obey the following points in your relations with me:

1. you will not expect any intimacy from me, nor will you reproach me in any way;
2. you will stop talking to me if I request it;
3. you will leave my bedroom or study immediately without protest if I request it.

D. You will undertake not to belittle me in front of our children, either through words or behaviour.

As usual, please make contact if you would like access to any of the content mentioned in this post.

** For the trainspotters, the title of today's post is riffed from the Hole song ‘Malibu’.

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Oops! … I did it again**: amending existing agreements

An issue that often arises is the desire to amend an existing agreement, with effect from a particular date – regularly that date will be on and from the day the original agreement was entered into.

It is generally accepted that, as between the parties, an agreement can be effective and binding on whatever basis is desired. This does not mean however that an agreement can be changed such that it is binding retrospectively on third parties, such as revenue authorities.

Arguably the leading case in this area is Davis v Commissioner of Taxation; Sirise Pty Ltd v Commissioner of Taxation 2000 ATC 4201. As usual, if you would like a copy of the case please contact me.

In this case the parties purported to have an agreement entered into that caused adverse tax consequences amended some time later, with effect from the date of the original document.

In rejecting the effectiveness of the amended agreement in binding the Tax Office it was confirmed that a rectification by a court or by deed between the parties is the only approach that binds third parties. Such an approach however is only available where the parties are under a mutual mistake that the document they signed recorded the terms of their bargain, when in fact it did not.

Rectification does not operate to ‘alter the past’, rather it simply recognises what had in fact always been the case, namely that the true agreement between the parties was not correctly recorded in the document that was mistakenly signed.

Critically, rectification requires that there must have been a mutual mistake. In other words, ‘a common intention between the parties as to the effect that the instrument they signed would have had which was inconsistent with the effect which the instrument which they executed in fact had’.

A mistake or misunderstanding, for example, as to the revenue consequences of an agreement is not a mutual mistake allowing rectification.

** For the trainspotters, the title today is riffed from Britney Spears song of the same name from 2000 see hear (sic):

How does it feel** - when a deed of rectification causes a resettlement?

Recently we revisited a Tax Office private ruling in relation to a decision by the trustee of a discretionary trust to rectify a trust deed so it correctly reflected the intentions of the settlor at the time of establishing the trust some years earlier.

The exact ruling is Authorisation Number 37630. As usual if you would like a copy please contact me.

Critically, the ruling is based on the assumption that a court would in fact approve the rectification – a rectification requires a court to make an order to correct a trust instrument that, due to mistake, does not reflect the true intention of the parties.

The specific issue of concern was whether the rectification would create a new trust, or in other words, a resettlement, to be triggered.

The private ruling remains a very useful reminder of the usefulness of rectifications, even though it is from 2004 and therefore predates the substantial changes in approach about resettlements in 2012 of the Tax Office (see the other View posts on this issue).

The ruling confirms that where a trust deed fails to accurately express the true agreement between the parties, equity will allow rectification of the document.

In particular, it was confirmed that:

‘The object of rectification is not to make a new contract for the parties or to alter the terms of an agreement, nor to rescind the existing contract it does not create new rights but to rectify the erroneous expression of agreements in documents' (see GE Dal Pont, DRC Chalmers - Equity and trusts in Australia and New Zealand).

Importantly, a rectification also has retrospective effect.

That is, a rectification is 'to be read as if it had been originally drawn in its rectified form' (see Craddock Bros v. Hunt [1923] 2 Ch 136.

As there is no change in the intended beneficial interest of the beneficiaries there are also no changes to the terms and conditions of the trust. Therefore, a rectification does not result in the creation of a new trust.

** For the trainspotters, ‘how does it feel’ is a line from the New Order song from 1983 ‘Blue Monday’ listen hear (sic):

Have you got time to rectify?**

Previous View posts have looked at various aspects of deeds of variation, and in particular, the critical need to 'read the deed' before implementing any variation.

Where a purported deed of variation later proves to be ineffective due to a failure to follow the provisions of the trust deed, one approach that can provide a solution is a deed of rectification and clarification.

Generally, this approach will be a valid way to address previous inconsistencies, without the need for court approval.

Critically however, any attempt to rectify or clarify historical issues with a trust deed cannot do something that is beyond what was originally contemplated by the parties involved.

One example in this regard that we reviewed recently, involved a situation where a trustee was incorrectly inserted under a deed of variation as a beneficiary, in direct conflict with another provision of the trust instrument.

On discovery of the conflict some years after the deed of variation, it was clear that the only way to rectify the error would be to change the trustee with retrospective effect to a new entity. The deed of rectification approach was unavailable as the deed could not ignore the clear intention of the parties, which at the time was that the trustee should remain in its role and a rectification workaround would have ignored that fact.

** For the trainspotters, ‘time to rectify’ is a line from the Beatles song from 1965’s Rubber Soul ‘Think for Yourself’ listen hear (sic):

Right by your side** - Key rules for when a prenup will fail

Previous View posts have looked at various cases where a binding financial agreement (BFA) has been held to be ineffective.

The case of Hoult v Hoult (2013) 276 FLR 412 arguably provides the best summary of the key rules in this regard.

In considering whether the wife could avoid the terms of a BFA due to not having received independent advice the court confirmed -

1. the parties need only have received independent legal advice on the document before the BFA will be assumed to be valid - the utility or content of the legal advice and indeed whether it was even understood are not relevant issues in determining whether the test is met;
2. the certificate of advice issued by each lawyer will generally be sufficient evidence that advice has been given, unless the resisting party can show evidence that creates doubt about the conclusion that would otherwise be drawn from the certificate.
3. if a party can show that there is a legitimate issue as to whether independent advice has been given then the onus of proving that the advice was in fact given is effectively 'reversed' and it is the task of the party wanting to have the BFA upheld who must satisfy the court. This is because the legislation provides that a BFA is binding 'if, and only, if' the listed requirements are all proved.
4. therefore the party to a relationship wanting to rely on a BFA must establish the existence of all required matters.

Similarly, in the case of Warrick and Mia [2018] FamCA 426, a provision which stated 'the assets and personal effect (sic) which are held in both parties’ names acquired after the marriage shall be property of both parties and should be divided between the parties on a contribution basis' was held to be so unclear that it was unenforceable; making the entire agreement also void.

This was because the phrase was an operative term and it was impossible based on the way the document was drafted to determine if 'contribution' related to non-financial as well as financial aspects.

As usual, please make contact if you would like access to any of the content mentioned in this post.

** For the trainspotters, the title of today's post is riffed from the Eurythmics song ‘Right by your side’.

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King of the mountain** - Principal's or Appointor’s appointing themselves as trustees

The position according to case law is that the powers of a principal or appointor style role of a trust are fiduciary powers that must be exercised for the benefit of the beneficiaries.

Arguably the leading case in relation to the general prohibition is In re Skeats' Settlement (1889) 42 Ch D 552.

In this case it was relevantly held that:

1. the ordinary power of appointing new trustees imposes upon the person who has the power of appointment the duty of selecting honest and good persons who can be trusted with the very difficult, onerous, and often delicate duties which trustees have to perform;
2. there is a duty to select to the best of the appointor's ability the best people;
3. there is a universal rule that a person should not be a judge in their own case; in other words a person should not decide that they are the best possible person, and say that they ought to be the trustee.

Subject therefore to the trust deed of a trust, a principal or appointor cannot use their powers to appoint themselves as trustee.

As set out in previous posts many modern trust deeds contain an exception to this rule.

The general prohibition is also removed by legislation in some states.

As usual, please make contact if you would like access to any of the content mentioned in this post.

** For the trainspotters, the title of today's post is riffed from the Kate Bush song ‘King of the mountain’.

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Let Love Rule - Specific Requirements of Binding Nominations **

Previous View posts have considered various aspects of superannuation nominations, including binding death benefit nominations (BDBN).

As with many other aspects of estate planning, whenever considering a BDBN, the starting point should always be the requirements set out under the trust deed. Indeed, a BDBN can only be used where the deed allows one to be made.

Below is an example of some of the requirements that are generally set out in trust deeds before a nomination will be held to be binding, the first three of which are generally required by legislation:

1. must be in writing;
2. must be signed, and dated, by the Member in the presence of 2 witnesses, each of whom has turned 18 and neither of whom is a person mentioned in the notice;
3. must contain a declaration signed and dated by the witnesses stating that the notice was signed by the Member in their presence;
4. will not lapse by the passing of time;
5. may be revoked by the Member by written notice to the Trustee at any time;
6. must contain sufficient details to identify the Member; and
7. must contain sufficient details to identify one or more Beneficiaries for each category of benefits selected.

While almost all trust deeds that allow BDBNs will have provisions along the lines outlined above, at times there will be additional provisions that are not necessarily expected. Some examples in this regard include:

1. a requirement that the trust deed for the superannuation fund cannot be amended in a way that impacts on any BDBN without the consent of each member who has made one;
2. a provision that empowers the trustee to accept amended BDBNs from the financial attorney of a member;
3. the trustee may be required to consider and accept a BDBN before it is valid; and
4. there may be a particular table or form that is required to be embedded into the BDBN, which sets out the percentage entitlement of each beneficiary.

** For the trainspotters, ‘Let Love Rule’ is a song by Lenny Kravitz from 1989. See here –