Keith Richards, estate planning, body disposal and keeping it Respectable**

Last week’s post mentioned Keith Richards and it reminded me of one death-related story that Keith Richards is famous (or perhaps more accurately infamous) for. In particular, the way that Keith Richards (allegedly) disposed of his father’s ashes, as profiled in more detail below.

Certainly, one aspect of estate planning that often receives less attention than many other areas is body disposal.

Ideally, a will maker’s wishes in relation to body disposal should be communicated to immediate family members or the executor of the estate.

A memorandum of directions, letter of wishes or similar style document is often the best mechanism in this regard.

At least in western culture, the three most traditional body disposal approaches are:

1. burial;
2. cremation;
3. burial at sea.

Some alternative approaches include the following, which can all be accessed via Dr Google:

1. Diamonds
2. Mummification
3. Cryogenically frozen
4. Coral reefs
5. Composting
6. Deluxe cardboard box
7. Vinyl records
8. Firecrackers
9. Snorting (ie the Keith Richards play; note - the mixing of ashes with illicit substances is generally regarded as optional)
10. Smoking – as a variation on the snorting idea, friends of rap singer Tupac allegedly mixed his ashes with marijuana and smoked them
11. An hour glass
12. Glass orb
13. Snow Globes
14. Space flight (as made famous by James Doohan, the actor who played Scotty in Star Trek, whose ashes were sent into space on a Elon Musk SpaceX rocket launch)
15. Shot out of a cannon – Hunter S. Thompson style, perhaps helping deliver on his famous comment that:

‘Life should not be a journey to the grave with the intention of arriving safely in a pretty and well preserved body, but rather to skid in broadside in a cloud of smoke, thoroughly used up, totally worn out, and loudly proclaiming "Wow! What a Ride!”’

** For the trainspotters, the title of today's post is riffed from the Rolling Stones song 'Respectable'.

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Pre-nups, (cosmic) pole dancers** and PI insurance

The saga involving swimmer Grant Hackett suing two law firms for negligence is a high profile reminder of the difficulties in relation to 'pre-nups'.

Broadly the Hackett matter centred on allegations that the relevant law firms failed to properly advise him to create a binding financial agreement.

In particular, Hackett argued that the original agreement entered into before marriage failed to comply with the strict legal requirements under the Family Law Act. When the agreement was later updated after the birth of the couple's twin children the alleged difficulties with the agreement were not remedied.

In many respects the issues here are analogous to the relatively well known 'pole dancer' case of Wallace v Stelzer [2014] HCATrans 135 - so named because the husband met the wife at what was described as 'an adult entertainment venue' where the wife was working as a dancer. As usual, if you would like copies of the relevant decisions please email me.

At the heart of the pole dancer case was the husband's desire to avoid the terms of the binding financial agreement that saw him liable to pay $3million dollars to his former wife when their marriage ended after only 18 months.

Some of the arguments raised included that the lawyers failed to discharge their duty to properly explain the terms of the agreement - an allegation that would have seen the lawyers potentially liable in negligence if it had been held to be correct.

It was also argued that the agreement was void in relation to some technical aspects required to be complied with under the Family Law Act and that attempted legislative fixes to the rules were also invalid, in part because the changes purported to be retrospective.

While it was ultimately held that the agreement was effective and the legislative changes were valid the extent of the litigation has seen many law firms, even those that specialise solely in family law, choose to no longer prepare binding financial agreements.

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 T-Rex song 'Cosmic Dancer'.

View a version by Nick Cave here: 

Death Defying**: AKA Contribution reserving

Contribution reserving has for many years been largely viewed as a strategy that in most instances will be too aggressive to comply with the approach the Tax Office is comfortable with in this space.

This said, the Tax Office Determination (TD) 2013/22 does appear to confirm that, subject to the governing rules of an SMSF trust deed, some basic contribution reserving can occur.

In particular, assuming the trust deed and the fund’s reserving strategy, are complied with, then TD 2013/22 supports an approach along the following lines:

1. a fund member can make a contribution to a SMSF that is double their concessional contribution cap in the one financial year;
2. half of the contribution can then be applied to, for example, an 'unallocated contribution account'. Arguably, an unallocated contribution account is analogous to a reserve account;
3. the other half would then be counted towards the relevant member's concessional contribution cap for the first financial year; and
4. in the second financial year, the trustees of the fund would resolve to allocate the amount applied to the unallocated contribution account to the relevant member and it would then be applied to that member's concessional contribution cap in the subsequent year - i.e. the year of actual allocation.

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

** for the trainspotters, the title today is riffed from the Hoodoo Gurus song 'Death Defying'.

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