Does it get you where you wanna go … with a warranty (and indemnity)? **

Previous posts have considered various aspects of warranties and indemnities (see -What is a warranty?, Indemnities).

Generally, the scope of recovery and damages that may be obtained will be greater where an indemnity is provided.

This is because an indemnity is effectively a promise to either reimburse or make good relevant issues if they arise.

Furthermore, indemnities:

1. Do not require the person giving the indemnity to have actually caused the loss – in other words, regardless of how the loss arises, liability will be triggered. 
2. Common law rules that normally limit the scope of liability, such as remoteness or an obligation to mitigate losses, do not apply in relation to indemnities. 

In contrast, a warranty only provides a promise that certain statements are correct. Practically this means:

1. A party seeking to claim in relation to a breach of warranty must do so by seeking damages.
2. The common law principles mentioned above of remoteness and an obligation to mitigate potential losses do apply. 

** For trainspotters, ‘does it get you where you wanna go ... with a warranty’ is a line from a song named ‘Days That Used To Be’ by Neil Young and Crazy Horse from their seminal 1990 album ‘Ragged Glory’ – listen here – www.youtube.com/watch?v=SQeM2yLSiss

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View University launches with 6 courses in estate planning and trusts

At View, we are passionate about providing access to technical content across a range of formats, including traditional products, such as textbooks and seminars, together with online platforms such as webinars, smart phone apps and podcasts.

This week we are excited to officially launch 6 university level courses, namely –

1. Introductory Estate Planning 
2. Intermediate Estate Planning 
3. Advanced Estate Planning 
4. Trust structuring 
5. Taxation of trusts 
6. The 7 Steps to Success – Implementing View’s Turn-key Adviser Facilitated Estate Planning Platform

Each course is designed to be relevant for all advisers including accountants, financial advisers and lawyers, other than lawyers who have specialised in the trusts and estate planning space for many years.

With 35 discrete learning modules and over 15 hours of technical content in each course, including webinars, vidcasts, and technical papers, the university level courses are the first of their kind in the Australian marketplace.

For those advisers who can not self assess their professional development compliance, all courses have received accreditation from the Financial Planning Association (FPA), namely - accreditation number 008722 for over 60 hours .

To learn more about each course and View University more generally, see - http://viewuni.com/

For your chance to receive free access to a course, simply like or comment on this post on LinkedIn within the next seven days and we will randomly select one winner and contact you directly.

What is the Four Eye principle?

Many years ago, our business implemented what we refer to as the 'four- eye' process.

Essentially, this control process is designed to ensure that at least two people review every piece of correspondence or work performed, even in what would otherwise be considered to be a 'simple' situation.

In more complex scenarios, we often have a six or even eight-eye review process which can often involve a peer review of certain technical issues by lawyers who might in fact specialise in other areas.

While our four-eye process does not eliminate all mistakes, it certainly provides an excellent safety mechanism in the vast majority of cases.

It also aligns with one of our key mantras – measure twice; cut once.

Many mantras we live by at View are profiled in my business book 'Laws for Life'.

A link to your (free!) copy of this book is below -

https://viewlegal.com.au/laws-for-life/
Password: laws4life

Please delete any pre-populated password.

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Accessing excepted trust income - just like working 9 to 5 **

The last two posts have explored the more concessional than previously expected approach to superannuation proceeds trusts (SPT) by the Tax Office (see - Just Can't Get Enough tax wins ** and Don't Stop Believin' - Tax Office & superannuation proceeds trusts **).

In Private Binding Ruling (see Authorisation Number 1051187537572) the Tax Office provides further clarity about how an SPT needs to be structured in order to ensure infant beneficiaries can access the excepted trust income regime. As usual if you would like a copy of the Private Ruling please contact me.

In particular, the Tax Office states that in order for an SPT to satisfy the conditions to access excepted trust income and the provisions in sections 102AG(2)(d)(ii) and 102AG(2A) of the Tax Act, the following criteria must be met -

1. the key beneficiaries must be infant children. 
2. the purpose of the SPT must be to provide for the maintenance, education and benefit of the children. 
3. the children must be the only capital beneficiaries of the SPT. 
4. any power to appoint additional beneficiaries must be restricted to ensure any appointment will meet the requirements of sections 102AG(2)(d)(ii) and 102AG(2A) of the Tax Act. 
5. the income of the SPT can only be accumulated for, or distributed to or for, the benefit of the children (although based on the Private Ruling mentioned in the post 2 weeks ago, it is likely that (for example) the surviving parent can also be an income beneficiary). 
6. property transferred to the SPT for the benefit of each of the children will be held exclusively for each of the children and can be distributed to only that child during or at the end of the SPT. Again, based on the Private Ruling mentioned in the post 2 weeks ago, it is likely that on vesting of the SPT, if the relevant children die before the SPT vests, the trust fund can be held for the legal personal representatives of the children. 

** For trainspotters, in 1980/1981, when much of the original thinking around these rules was developed, the Dolly Parton movie and song 'Working 9 to 5' were big hits. 'Working 9 to 5' being used as a reference to having to follow the rules set by the 'machine' - hence the reference in the title to this post. Given the likelihood many readers of today's post were not born in 1981, further learning is available here -

Movie - https://en.wikipedia.org/wiki/9_to_5_(film)

Song - https://www.youtube.com/watch?v=LwDMFOLIHxU

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