Notional estates

Laws in each state of Australia allow a family member or certain other dependants to challenge a deceased's will.  Such a claim is generally known as ether a family provision application or a testator's family maintenance (TFM) claim.  Whether a TFM claim is successful depends upon a range of matters – regardless of the outcome however, TFMs can be costly and emotionally debilitating for all parties involved.

Historically in all Australian states, a TFM claim could only relate to property that was owned by the deceased on the date of their death, putting certain property – such as trust assets or those owned by a spouse - outside the reach of a TFM claim.

In 2005, NSW introduced 'notional estate' provisions, which essentially enable a court to treat certain property that is not legally part of a deceased estate, as being deemed to be included and thereby open to attack by a TFM.  These provisions apply to NSW domiciled persons and any property located within NSW. 

For property to be part of a notional estate, ‘a relevant property transaction’ must have occurred, which in broad terms requires a positive act or omission that results in property being owned by someone other than the deceased. The offending transaction must have taken place within certain specified times before the date of death of the will maker.

All Australian states have been considering adopting similar notional estate provisions to NSW. The only other state to announce their likely approach has been Victoria.  In October 2013, the Victorian Law Reform Commission (VLRC) released its final report on Victoria's succession laws, and recommended that the NSW notional estate provisions should not be adopted in Victoria.

In September 2019 the equivalent body in Tasmania also rejected implementation of a notional estate regime in that state, unless and until there are uniform national rules introduced

This said, even otherwise where a state’s succession laws do not include notional estate provisions, there may still be means to attack assets not otherwise forming part of a deceased’s estate, including because of poor planning or due to sham, contrived or artificial transactions.

Until next week.

Image credit: thinkpanama cc

Division 152 concessions and superannuation contributions

Given the number of changes to the small business concessions since their introduction back in 1997, it is understandable that many clients and their advisers lose track of the exact way in which the provisions work.

Last week, we were reminded when assisting another adviser about one critical aspect of the rules, namely that in many instances it is possible for taxpayers to delay a decision on whether to roll a capital gain over into a new asset, pay the tax, or make a contribution into superannuation for at least two years after the date of sale.  Indeed in many cases the deferral opportunity is closer to three years.

Obviously (as with most aspects of the small business concessions), care needs to be taken to ensure this planning opportunity is in fact available, however assuming the basic conditions are otherwise satisfied, the additional two to three year window is one that we are seeing regularly accessed.

Until next week. 

Image credit: Ken Teegardin cc

Where are we at with trusts?

As set out in earlier posts, and with thanks to the TelevisionEducation Network, today’s post addresses the issue of ‘Where are we at with trusts?’ at the following link - http://youtu.be/ZMgAI9edJ-4

As usual, a transcript of the presentation for those that cannot (or choose not) to view the presentation is below –

There's undoubtedly been an enormous amount of hysteria in recent times in relation to trusts generally, but particularly from a family law perspective. That hasn't been helped, because of a series of decisions that have come out from a family law perspective that have got a lot of media attention. 

The reality is there's also been an equal number of decisions and pronouncements from the Tax Office across issues, such as unpaid present entitlements, the taxation of trusts generally, resettlements of trusts. So you've had a whole range of things happening under both family law and wider commercial issues that have come out of the courts and out of the revenue offices. 

Then on top of that, you've had the government constantly looking to introduce new legislation, and making announcements about what may or may not happen in relation to the taxation of trusts. 

These three issues have almost created a perfect storm in terms of the amount of white noise that is around concerning where we are with trusts.

Until next week.

The Privacy Act and View Legal’s international footprint

A key component of the View Legal platform has been its dedication to early adoption of innovations that can help achieve the reason we built the platform – to create the kind of firm our friends would choose to use.

The 2014 changes to the privacy rules requiring more detailed disclosure of businesses' international footprint is a timely opportunity for us to revisit the extent of the contribution made to the View Legal platform from around the world.

Like most businesses, our success essentially depends on a network of specialists. As a law firm, we have an agreement with each service provider that receives personal client information which requires that they comply with the Australian privacy legislation.

A summary of our virtual team currently (although it sometimes changes on a weekly basis) is as follows:

1. we have lawyers based in the Philippines, regional Queensland, India, South Africa and suburban Brisbane.


2. our IT team has contributors in the Brisbane CBD, various locations throughout India and suburban Brisbane, together with cloud supported services throughout the USA and other confidential locations.


3. our marketing and collateral providers are sourced from various locations throughout Europe, USA, Canada, New Zealand, the Philippines and Australia.


4. one of our favourite social media consultants currently assists from suburban Brisbane, other than when she is travelling in locations such as Buenos Aires, Spain, Italy, Greece, the UK, France and Germany.


5. one of our research consultants currently works out of Argentina.


6. we have copy editors based in New South Wales, Victoria, the US and the UK.


7. we have administrative and accounting support from assistants in the Philippines, New Zealand, Canada, Pakistan and Sweden.


8. our primary word processing provider, who has been a critical part of our success, even in the years prior to View Legal launching, is based in India.

As the popularity of platforms such as Elance and Fiverr (that we have used extensively from their launch) continues to grow, we suspect the only certainty for our business is that our international footprint will also continue to grow.

This said, the growth of our international team has been matched by the growth of our Australian based team, and we take great pride in the fact that all staff enjoy flexibility around their work arrangements, and work remotely with access to physical office space on a needs basis only.

Until next week.

Image credit: Alan Cleaver cc