Tuesday, March 31, 2015

When will an inheritance be at risk?

As set out in earlier posts, and with thanks to the Television Education Network, today’s post addresses the issue of ‘When will an inheritance be at risk?’ at the following link - https://youtu.be/Ks2GvSVp07U

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

There is a true continuum in terms of the approach that the court is going to take, where at one end, assets of a trust will be completely exposed and will be considered property of the relationship. At the other end, you've got a situation where the assets will be completely ignored and they won't even be considered a financial resource. 

Inheritance is a classic example, because in order for the court to make a decision that they're not taken into account, it really does come back, and this will often be used by the lawyers, to the two word answer - 'it depends', because it really does depend on the underlying factual matrix.
If people are particularly concerned about trying to exclude inheritances, the types of things that the courts will normally gravitate towards are things like ensuring that the assets pass as late as possible in terms of when the relationship has broken down, and ideally to the extent this can ever be achieved, that the assets don't pass until after the relationship has ended. 

The other things that are relevant include whether the former spouse has in any way contributed to the growth of the assets that are coming via the inheritance. Obviously, and most relevantly in the context of trust planning, whether the people that are handing the assets on have done so directly in the name of the spouse, or preferably have they used some sort of trust structure - for example, a testamentary discretionary trust.

Until next week.