tag:blogger.com,1999:blog-2011756462222283442024-03-19T07:00:32.385+10:00View LegalPosts by Matthew Burgess, Director at View Legal, Author and Entrepreneur. Practical tips for accountants and advisers in tax, estate and succession planning, business structuring, asset protection, superannuation and all related areas.View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comBlogger660125tag:blogger.com,1999:blog-201175646222228344.post-83314371816547387892024-03-19T07:00:00.012+10:002024-03-19T07:00:00.134+10:00When you dream** of a better trust deed; however the court refuses to assist<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgOo35ov8m5IoXWtt6jpMWmf8i5Vk7rgznU_9YIwY3317tJ0CeiCMjBhb0arZvwkRieZrFvTzDQS7hA2ajZQWXqWCYTbGUkUGtwAYV6_efj6q2ooUJFp8F3sOpZ_-_GrdF3oG-P8EuXs5PTUiVWpX4uN7zWo-eaSg2cA75T-N54ieQ0jwn8rjVX6zRm/s560/7._19-Mar-24.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - When you dream** of a better trust deed; however the court refuses to assist by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgOo35ov8m5IoXWtt6jpMWmf8i5Vk7rgznU_9YIwY3317tJ0CeiCMjBhb0arZvwkRieZrFvTzDQS7hA2ajZQWXqWCYTbGUkUGtwAYV6_efj6q2ooUJFp8F3sOpZ_-_GrdF3oG-P8EuXs5PTUiVWpX4uN7zWo-eaSg2cA75T-N54ieQ0jwn8rjVX6zRm/w320-h180/7._19-Mar-24.jpg" title="View Legal blog - When you dream** of a better trust deed; however the court refuses to assist by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>Last week's post considered the issues about varying a trust that has no power to vary, under the regime in New South Wales. <br /><br />While in other states, for example Queensland, it is generally accepted there is a relatively wide power available to the courts to assist with amending trust deeds that do not have robust provisions, the rules in New South Wales are far more restrictive. <br /><br />One further example in this regard is the decision in <i>Application of Country Road Services Pty Ltd (In the matter of the Browne Family Trust)</i> [2019] NSWSC 779. <br /><br />In this case a desired amendment to a trust deed to appoint a related trust (that had losses) to allow distributions to it was rejected as not being 'expedient' (as required by the legislation in New South Wales). <br /><br />The court confirmed that: <br /><ol style="text-align: left;"><li>The variation of the terms of a trust (including by way of conferral of some new power on the trustee) is not something within the ordinary and natural province of a trustee’s powers (unless the trust deed otherwise grants the relevant power). </li><li>It is neither something that is ‘expedient’ that a trustee should do nor, fundamentally, something that is done ‘in management or administration of’ trust property.</li><li>Rather, a trustee’s function is to take the trusts as it finds them and to administer them as they stand.</li><li>A trustee should not be concerned to question the terms of the trust or seek to improve them.</li><li>Thus, even where the trust instrument itself gives the trustee a power of variation, exercise of that power is not something that occurs “in the management or administration of” trust property. It occurs in order that the scheme of fiduciary administration of the property may somehow be reshaped.</li><li>Ultimately, the Court’s power to amend a trust deed in New South Wales cannot be used to subvert the beneficial disposition in the trust instrument.</li></ol> Similarly therefore, a request to amend a trust deed to extend the perpetuity period was held to be another example of the kind of order not authorised by legislation in New South Wales (see <i>Cisera v Cisera Holdings Pty Ltd </i>[2018] NSWCA 286), even though the trust was due to vest in around 7 years and would likely trigger significant capital gains tax costs at that point. <br /><br />As usual, please make contact if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the Simple Minds song ‘New Gold Dream’. <br /><br />View here:<div> <br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/gm6tjsScw6I" width="320"></iframe></center></div>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-8020455264539024572024-03-12T07:00:00.009+10:002024-03-12T07:00:00.129+10:00Salvation!** - Varying a trust deed when there is no power of variation<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh8lPsRUaq2jMa0cpHi4kXm8ovfbXI7TT4Gqfvwgy_-wqYzC9D_zNkbaxZ5aGQhpI-Gf6SwQ0OCTXDrrevTdKZGg_YeO_p7L1jJWfKAuqxVu1Y5PbHA8a2cDE-MPVfBfqltT_lTocQfM_Q1cvj6iN_kYIIw6xcqsxpkLWo2jQFjB9ob2B53fjkm5U7j/s560/6._12-Mar-24.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Salvation!** - Varying a trust deed when there is no power of variation by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh8lPsRUaq2jMa0cpHi4kXm8ovfbXI7TT4Gqfvwgy_-wqYzC9D_zNkbaxZ5aGQhpI-Gf6SwQ0OCTXDrrevTdKZGg_YeO_p7L1jJWfKAuqxVu1Y5PbHA8a2cDE-MPVfBfqltT_lTocQfM_Q1cvj6iN_kYIIw6xcqsxpkLWo2jQFjB9ob2B53fjkm5U7j/w320-h180/6._12-Mar-24.jpg" title="View Legal blog - Salvation!** - Varying a trust deed when there is no power of variation by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>Pursuant to the Trusts Acts (and similar legislation) in most Australian states, there is an inherent power for a court to make variations to trust instruments. <br /><br />This power can be extremely important where there is no, or a very narrow, power of variation in a trust instrument. <br /><br />One of the leading cases in this area is <i>Re Dion Investments Pty Ltd</i> [2013] NSWSC 1941. <br /><br />In broad terms, the case involved a trust deed setup in 1973, which the trustee was wanting to amend so as to be able to better manage the trust property. The relevant legislative provision in New South Wales gave the court the power to amend a trust instrument so long as it was ‘expedient' for the management or administration of trust property. <br /><br />In rejecting a request to amend the deed by inserting a comprehensive variation power (which in turn would have allowed the trustee to make such changes to the trust deed as it deemed appropriate from time to time), the court confirmed: <br /><ol style="text-align: left;"><li>The legislative provisions did not allow the court to simply insert into the deed a comprehensive power of variation. </li><li>Only specific powers (in contrast to wide discretionary powers) with respect to a particular dealing will be granted under the legislation.</li><li>It was however permissible for the court to confer particular and limited powers in relation to certain issues such as how to account for income and capital gains and related tax driven provisions.</li><li>Despite not originally crafting its variation request along the lines that the court said was permissible, the trustee was permitted to make further submissions in accordance with the court’s recommendations for immediate approval.</li></ol>Interestingly, in the subsequent decision of <i>Re Dion Investments Pty Limited</i> [2020] NSWSC 1661, the court authorised a further variation to ensure the ‘foreign person’ land tax surcharge could be avoided. This was in light of the fact that the trust deed did not give the trustee the ability to exclude foreign persons as beneficiaries. In particular, the relevant power of variation was limited to 'trusts' (granted to persons who had all died and therefore had lapsed), not the ‘powers’ – a distinction explored in many previous View posts. <br /><br />The court confirmed that the requirements in the legislation were all met, namely: <br /><ol style="text-align: left;"><li>There needs to be a 'proposed dealing', being a 'sale, lease, mortgage, surrender, release, or disposition, or any purchase, investment, acquisition, expenditure, or transaction'. </li><li>The dealing must be in the Court’s opinion 'expedient'.</li><li>The dealing must be incapable of being effected because of an absence of power.</li></ol>Relevantly the court confirmed that the existence of a tax advantage can form the basis of the ‘expediency’ in the management and administration of trust property requirement; here the land tax saving was over $100,000. This conclusion was reached notwithstanding that the order would adjust or even destroy the rights of some (potential) beneficiaries to the extent that they met the definition of a 'foreign person'. <br /><br />The same outcome was granted in the case of <i>Cecil Investments Pty limited</i> [2021] NSWSC 211, where the trust deed permitted only a variation to the 'powers' not 'trusts. <br /><br />This case also confirmed that previous attempted variations to the trust deed were invalid as they breached the limitation set out in the power of variation against anything that purported to change beneficiaries who were takers-in-default of appointment. <br /><br />As has been explained in numerous previous posts, a comprehensive power of variation is arguably one of the most important aspects of any trust deed. <br /><br />It is important to keep in mind that the legislation is worded differently in each State, for example the Queensland Courts have a wider power than in NSW. Reference should therefore always be had to the specific wording of the legislation in the relevant jurisdiction. <br /><br />As usual, please make contact if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the Black Rebel Motor Cycle club song 'Salvation’. <br /><br />View here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/dhSXxpOsYTY" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-70662880520133782152024-03-05T07:00:00.013+10:002024-03-05T07:00:00.262+10:00To avoid orphans** - you need to know who the parents are<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjIL8z0aMmfLiWJgapG7dhGZCUiijaANL4FpdOeAX_bOb49-tFlsTUP6pSX71dLBTIiA2BMQEa2McS6pdYWY-2ufTm5oiaRBxL6wUurlcAYB5r9WwYJw3ph4OS0LH22V61XRJLTVbaDu4QCxBssmecEyRhreymLpg-eVOQVzrNYZ0TDt_EWBHNeQb8i/s560/5._05-Mar-24.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - To avoid orphans** - you need to know who the parents are by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjIL8z0aMmfLiWJgapG7dhGZCUiijaANL4FpdOeAX_bOb49-tFlsTUP6pSX71dLBTIiA2BMQEa2McS6pdYWY-2ufTm5oiaRBxL6wUurlcAYB5r9WwYJw3ph4OS0LH22V61XRJLTVbaDu4QCxBssmecEyRhreymLpg-eVOQVzrNYZ0TDt_EWBHNeQb8i/w320-h180/5._05-Mar-24.jpg" title="View Legal blog - To avoid orphans** - you need to know who the parents are by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>In theory, given modern science, the question of who is a parent of a child should be relatively easy to answer. <br /><br />As the decision in <i>Masson v Parsons </i>[2019] HCA 21 highlights, the answering of this question is not always straight forward. <br /><br />Briefly the factual matrix involved a female asking a male friend to be a sperm donor so she could carry and bare a child. The 'couple' each entered into longer term same sex relationships with other people, however the male friend was registered on the birth certificate of the father and was actively involved and helped finance raising of the child. <br /><br />When a dispute arose in relation to living and caring arrangements for the child between the biological mother and father the court confirmed: <br /><ol style="text-align: left;"><li>There are at least three ways in which a person may be or may become a natural parent of a child depending on the circumstances of the particular case, namely genetically, gestationally and psychologically (see <i>In re G (Children) </i>[2006] 1 WLR 2305). </li><li>The question of whether a person qualifies as a 'parent' is a question of fact and degree to be determined according to the ordinary, contemporary understanding of the word and the relevant circumstances of the case.</li><li>To characterise the biological father of a child as a 'sperm donor' (and therefore not a 'parent') suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure.</li><li>This said, it was unnecessary in this case to decide whether a man who relevantly does no more than provide his semen to facilitate an artificial conception procedure that results in the birth of a child falls within the ordinary accepted meaning of the word 'parent'.</li><li>This was because in the circumstances of this case, the man provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child's parent; that he would be registered on her birth certificate as her parent, as he was; and that he would, as her parent, support and care for her, which since her birth he had done.</li></ol>As usual, if you would like access to any of the content mentioned in this post please make contact. <br /><br />** For the trainspotters, the title of today's post is riffed from a line in the Beck song 'Orphans’. <br /><br />View here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/DX0WWzwbTsw" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-73538866208938240582024-02-27T07:00:00.003+10:002024-02-27T07:00:00.139+10:00Backdating legal documents not possible ... without a time machine**<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiwh-xGqCQYhS9cJiZFXn9R3RokoTN_2Gd6zwX0akmOdChWS404HHXpD4BCPS3qEtHL5nF_NFSjnGV1jMVyQYJ9vnzTjKrX9o4DBRXWQ4oFY0tNBfN36MedZWEPIwP-9lZDQoSMsXueNtqrNh6W0ms4MrdGPIjMKsbJMv2Zedz5-N3RA_VE19eXeQif/s560/4._27-Feb-24.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Backdating legal documents not possible ... without a time machine** by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiwh-xGqCQYhS9cJiZFXn9R3RokoTN_2Gd6zwX0akmOdChWS404HHXpD4BCPS3qEtHL5nF_NFSjnGV1jMVyQYJ9vnzTjKrX9o4DBRXWQ4oFY0tNBfN36MedZWEPIwP-9lZDQoSMsXueNtqrNh6W0ms4MrdGPIjMKsbJMv2Zedz5-N3RA_VE19eXeQif/w320-h180/4._27-Feb-24.jpg" title="View Legal blog - Backdating legal documents not possible ... without a time machine** by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>As explored in other View posts, backdating legal documents is never permissible, regardless of the phrase used to describe the approach (eg ‘retro dating’, ‘pre-dating’, ‘intended date’). <br /><br />The decision in <i>Edwards & Anor v Brougham</i> [2022] SASC 8 provides another example of the rules in this regard. <br /><br />Relevantly the factual matrix involved a dispute about the trusteeship of a discretionary trust where: <br /><ol style="text-align: left;"><li>a sole individual trustee purported to transfer an asset of the trust to themselves (as a potential beneficiary of the trust); </li><li>there was evidence confirming the appointor of the trust had exercised their power to unilaterally remove the trustee before the purported transfer;</li><li>the trustee, on advice from a lawyer, backdated a deed of transfer to a date that was before the appointor removed the trustee.</li></ol>In relation to the backdating, the court simply confirmed that it was 'not in itself effective to make a retrospective determination for the purposes of the trust deed'. The decision also confirmed: <br /><ol style="text-align: left;"><li>it is not necessary for a trust deed to have a condition for effective removal of a trustee the giving of notice to the trustee being removed; </li><li>the key reason for not requiring a removed trustee to be notified is that a former trustee, who continues to exercise powers honestly without notice of their removal, will be protected in several ways, for example they are indemnified by trust assets (assuming they have acted honestly);</li><li>Where two or more appointors are nominated, unless there is unambiguous wording to the contrary, the assumption is that the surviving appointor may act solely, that is, the appointment of two or more persons to an office is both joint and several;</li><li>similarly, unless there is clear wording preventing the outcome, a trustee may also act as appointor;</li><li>the court acknowledged that having a trustee also acting as the appointor of a trust was a 'relatively unusual' situation and 'would naturally be expected only as a measure of last resort', given that under the trust deed (as is often the case) the appointor was structured as a checking mechanism on the powers of the trustee.</li></ol>Similarly in the case of <i>Jaken Properties Australia Pty Ltd v Naaman</i> [2022] NSWSC 517, the confession of backdating cast a significant shadow over the claims of one of the parties. <br /><br />As usual, please make contact if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the Alicia Keys song 'Time Machine'. <br /><br />View here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/NFCsuDcWqY0" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-27618948782418046262024-02-20T07:00:00.011+10:002024-02-20T07:00:00.137+10:00Your digital footprint (part II) – some further comments on ‘stayin’ alive’**<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjxuONckFZ2wFb3ZWS2nrH2KbEIZkwnPaRZOtSjJegX_9MssMce6uuUVmv2-4PTomwcRfYGbq7lUUE-8hIyeK5ZJwWDXPJjJIEOCZS16PsvVhfvijy6VAFWRBn2X68pTYRP0SGv3mf6NoNrg6PMnEDNgnZdxrtvbbE59PhmC8Y9XS8OSgVQmjlXIXWF/s560/3._20-Feb-24.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Your digital footprint (part II) – some further comments on ‘stayin’ alive’** by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjxuONckFZ2wFb3ZWS2nrH2KbEIZkwnPaRZOtSjJegX_9MssMce6uuUVmv2-4PTomwcRfYGbq7lUUE-8hIyeK5ZJwWDXPJjJIEOCZS16PsvVhfvijy6VAFWRBn2X68pTYRP0SGv3mf6NoNrg6PMnEDNgnZdxrtvbbE59PhmC8Y9XS8OSgVQmjlXIXWF/w320-h180/3._20-Feb-24.jpg" title="View Legal blog - Your digital footprint (part II) – some further comments on ‘stayin’ alive’** by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>Last week’s post considered 6 of the key areas we suggest be captured on any checklist relating to a person’s digital footprint. <br /><br />As promised, this week’s post lists a further 7 areas to consider, namely: <br /><ol style="text-align: left;" type="a"><li>Inventory of all electronic devices (eg smart phones, tablet, laptops, computers, reading devices, watches, fitness bands, headphones, dvds, hard drives, USB sticks, digital cameras etc) </li><li>Review all apps on smart phones and tablets</li><li>Digital/virtual life games (eg Second Life, Kaneva, Virtual Life, School of Dragons, Twinity etc)</li><li>Online shopping (including payment gateways, buy/sell/swap services, ebay, Craiglist etc)</li><li>Online interactive gaming</li><li>Online gambling accounts (including Lotto, TAB, casino style games)</li><li>Online memberships (including discussion groups, home delivery, associations, clubs, libraries, professional associations, hobby groups, frequent usage/loyalty/rewards programs, work or student alumni associations, dating and introduction services)</li></ol>** For the trainspotters, the title of today's post is riffed from the Bee Gees song 'Stayin’ alive’. <br /><br />View here:<br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/fNFzfwLM72c" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-6671417663014784042024-02-13T07:00:00.002+10:002024-02-13T07:00:00.133+10:00Your digital footprint (part I) – a bit like stay(ing) alive**<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhPhK4MhwO8osQmetVzATQC_1da0ByGueHHk9myr3jcPSWqJJrTZp2j3jM7EKxGLVueMQ-l_o_JVotAGtoYeJRUWbWiCU3GrUjE5Lt2SnS-xM9Ha8lghau3krBLHYv_-VhhzAgq1DDjz2C0tfBu2rvoe4Tvd6KIkdLQCcPxA9Udwmmtsiiz2JMTE3So/s560/2._13-Feb-24.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Your digital footprint (part I) – a bit like stay(ing) alive** by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhPhK4MhwO8osQmetVzATQC_1da0ByGueHHk9myr3jcPSWqJJrTZp2j3jM7EKxGLVueMQ-l_o_JVotAGtoYeJRUWbWiCU3GrUjE5Lt2SnS-xM9Ha8lghau3krBLHYv_-VhhzAgq1DDjz2C0tfBu2rvoe4Tvd6KIkdLQCcPxA9Udwmmtsiiz2JMTE3So/w320-h180/2._13-Feb-24.jpg" title="View Legal blog - Your digital footprint (part I) – a bit like stay(ing) alive** by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>A previous post has considered the key issues in relation to digital assets on death. <br /><br />View also provides free access to a template memo of directions that has a section on digital assets. <br /><br />One of the easiest ways to ensure a person’s digital footprint is identified and arguably the best way to achieve this is by using a checklist. <br /><br />Where relevant the checklist should confirm contact details, user names, passwords, access codes, answers to security questions, log in pins, member numbers and payment arrangements. <br /><br />Set out below are 6 of the areas we suggest be captured on any checklist – next week’s post will list a further 7. <br /><br />In summary: <br /><ol style="text-align: left;" type="a"><li>Social media (including Facebook, Twitter, Linkedin, Instagram, Pinterest, Snapchat, Google hang out, Tumblr, Yammer) </li><li>Digital platforms (including Skype, YouTube, App Stores, blogs, online music and movie streaming, education and information services [eg TED, Udemy, podcasting, books], news feeds, magazines, software providers, personal websites, domain names)</li><li>Online storage (including documents, personal information, photos, videos, personal health and fitness, dictation, blogs, data storage, diaries, journals, Moleskins, Evernote, back up storage services, Dropbox)</li><li>Digital financial assets (rewards points, prepaid services, Bitcoin etc)</li><li>Email accounts (including work, gmail, Hotmail, Bigpond, personal), including any automated responses and mail lists subscribed to</li><li>Instant messaging and SMS services</li></ol>As usual, please make contact if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from Hamilton and the song 'Stay alive’. <br /><br />Listen here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/u44jORNkM3g" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-41150539661275938202024-02-06T07:00:00.010+10:002024-02-06T07:00:00.135+10:00A cover is not the book** Taxation of executor’s commission<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhR05EotDERZw2I3pI5vR1GugECagHjNqiLyyAFLaJqIHKlxdNY7-jqYM24XZ_pds_NZMHOK964a0rKlw5KbgYP63GxPbFFCJVfx0MHegbWAbmD_97Adr135M2CZNIeNiziE6oKfGG6l8Dj7YoOvq4xjLcEb_csvJ87fElUyopwLvTesGsGUO97F2XP/s560/1._06-Feb-24.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - A cover is not the book** Taxation of executor’s commission by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhR05EotDERZw2I3pI5vR1GugECagHjNqiLyyAFLaJqIHKlxdNY7-jqYM24XZ_pds_NZMHOK964a0rKlw5KbgYP63GxPbFFCJVfx0MHegbWAbmD_97Adr135M2CZNIeNiziE6oKfGG6l8Dj7YoOvq4xjLcEb_csvJ87fElUyopwLvTesGsGUO97F2XP/w320-h180/1._06-Feb-24.jpg" title="View Legal blog - A cover is not the book** Taxation of executor’s commission by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>Generally, where a person acts as the executor of another’s estate, one of three approaches are adopted to financially recognise the time, energy and effort involved. <br /><br />In summary, the approaches are: <br /><ol style="text-align: left;"><li>Reimbursement only – under this approach, all costs incurred by the executor (for example, engaging professional advisers) are reimbursed to the executor. </li><li>Payment according to services performed – often, this will be calculated by reference to the number of hours spent, multiplied by an appropriate hourly rate.</li><li>Commission.</li></ol>The rules in relation to executor’s commission are relatively complex, largely based on case law that in some instances is hundreds of years old. <br /><br />Importantly however, from a tax perspective, the Tax Office has confirmed that the payment of commission is essentially a reward for services rendered. This means that despite the fact that there is no formal employer/employee relationship, the income received by an executor must be included in their assessable income in the year it is derived and taxed at normal marginal rates. <br /><br />This conclusion is explained in more detail in ATO ID2014/44. <br /><br />Partly to counteract this outcome, and to provide a level of certainty as to the overall quantum of payment that is ultimately received by an executor, some will makers simply provide a specific cash gift to their executors under their will. <br /><br />As usual, please make contact if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from Mary Poppins Returns and the song 'A cover is not the book’. <br /><br />View here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/GNvV6N7veRs" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-76880049658489588692023-12-12T07:00:00.006+10:002023-12-12T07:00:00.141+10:00Always learning … Latest lesson: ‘Last Christmas’ ** by Wham is a break up song … Final Post for 2023 and Season's Greetings<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjXCM7doOMDCtVR6ZnNcZbvprrymdWANw8w-HDs7STU3PhotbjL5L1NqNB2NshFmaWnY2F8i1U0mUHEeuZbhXyor96LOVw3KaFukLa-13YdARO9vpsjUyK1Xh6haYI90oeJlL_LR--StK3yp0Rpiw1uwD9DUu6Sq8Ski7u4p5eSJ2Y6ya0osmwAPpuZ/s560/z5.12.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Final Post for 2023 and Season's Greetings by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjXCM7doOMDCtVR6ZnNcZbvprrymdWANw8w-HDs7STU3PhotbjL5L1NqNB2NshFmaWnY2F8i1U0mUHEeuZbhXyor96LOVw3KaFukLa-13YdARO9vpsjUyK1Xh6haYI90oeJlL_LR--StK3yp0Rpiw1uwD9DUu6Sq8Ski7u4p5eSJ2Y6ya0osmwAPpuZ/w320-h180/z5.12.2023.jpg" title="View Legal blog - Final Post for 2023 and Season's Greetings by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div><div>With the annual leave season starting in earnest over the next couple of weeks and many advisers taking either extended leave or alternatively taking the opportunity to catch up on things not progressed during the calendar year, last week’s post will be the final one until early 2024. <br /><br />Similarly, the social media contributions by both the View and Matthew will also largely take a hiatus until the New Year as from today. <br /><br />Thank you to all of those advisers who have read, and particularly those that have taken the time to provide feedback in relation to posts. <br /><br />Additional thanks also to those who have purchased the ‘Inside Stories – the consolidated book of posts’ (see - <a href="https://viewlegal.com.au/product/inside-stories-reference-guide/" target="_blank">https://viewlegal.com.au/product/inside-stories-reference-guide/</a>). <br /><br />The 2023 edition of this book, containing all posts over the last year, edited to ensure every post is current, indexed and organised into chapters for each key area should be available early in 2024. <br /><br />Very best wishes for Christmas and the New Year period. <br /><br />** for the trainspotters, ‘Last Christmas’ (riffed for the title of today’s post) is the Wham! hit from 1986, watch the quintessential 1980s video clip here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/E8gmARGvPlI" width="320"></iframe></center><br />PS: & recently I learnt why my first ever girlfriend broke up with me in grade 5 at about this time of the year back in 1986 … at the time I had just spent weeks of pocket money on a 7 inch single (you can google what this is …) by her favourite band Wham and the aforementioned single … <br /><br />not stopping to listen to the lyrics focused on the withdrawing of the giving of true love … she broke up with me the very next day … <br /><br />when sharing the breakup story with my daughters recently and musing how I never understood why she ‘dropped’ me they quickly pointed out the stupidity of my choice of gift. Samantha Curran of Flynn Primary School Canberra (who I have not seen or spoken with since that day in December 1986) – I am sorry.</div>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-9175096962034328702023-12-05T07:00:00.006+10:002023-12-05T07:00:00.265+10:00Why every will contains a testamentary trust (Not calling anyone a liar**)<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjStGYOL3nnCaxep8E4a14uZglC-HXP3kTSRcXdFciNKWco9OaYfwN85hPSJTuTJ2-04XupTUtXQvnQwDkRvem2wUMB8PyC8fUZfwK1PaITCQNoIS7GVzXE7KrHle8nJiKYYiv7Bz7PylMYCG2ULdJW1KA1h7iVB4u7lSeWc31Aez12TngQ_wQ1YnAI/s560/w5.12.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Why every will contains a testamentary trust (Not calling anyone a liar**) by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjStGYOL3nnCaxep8E4a14uZglC-HXP3kTSRcXdFciNKWco9OaYfwN85hPSJTuTJ2-04XupTUtXQvnQwDkRvem2wUMB8PyC8fUZfwK1PaITCQNoIS7GVzXE7KrHle8nJiKYYiv7Bz7PylMYCG2ULdJW1KA1h7iVB4u7lSeWc31Aez12TngQ_wQ1YnAI/w320-h180/w5.12.2023.jpg" title="View Legal blog - Why every will contains a testamentary trust (Not calling anyone a liar**) by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>While the popularity of comprehensive testamentary trusts has continued to grow significantly in recent years, strictly every valid will does contain a form of testamentary trust. <br /><br />While the popular usage of the term 'testamentary trust' refers to a comprehensive discretionary trust embedded into a will instrument, testamentary trusts can refer to any arrangement set out under a will where the intended beneficiaries are not absolutely and immediately presently entitled. <br /><br />The structure lasts only for the length of administration of the estate (ie normally only a few months). <br /><br />They are not testamentary trusts as normally understood and do not offer any ongoing tax, asset protection or flexibility advantages. <br /><br />The phrase for the clause establishing this form of ‘trust’ in a will is often along the lines of: <br /><blockquote>‘As to 50% of my Net Estate, UPON TRUST for my child once they attain the age of 25 years absolutely’ </blockquote>One (perhaps anecdotal) way to determine if a will has a comprehensive testamentary discretionary trust included is to apply ‘the weight test’. <br /><br />That is, a comprehensive testamentary discretionary trust will usually is around 30 pages in length. <br /><br />A ‘bare’ testamentary trust will is rarely more than 10 pages, and can often be as short as 2 pages. <br /><br />Some examples of where basic or 'bare' testamentary trusts exist include: <br /><ol style="text-align: left;"><li>where the beneficiary receives a direct gift that is subject to them attaining a certain age (for example, the clause set out above); </li><li>where a gift is given to a beneficiary who does not have legal capacity (for example, because they are under the age of 18, or are over the age of 18 and lack mental capacity); and</li><li>where a specific gift is given to a beneficiary, however the administration process of the estate has not been completed.</li></ol>In relation to the first two categories, the Tax Office will generally allow the ultimate beneficiary to enjoy access to the excepted trust income provisions. <br /><br />In relation to the last category however, the Tax Office generally only allows a maximum of 3 years whereby the excepted trust income provisions apply, and practically, we are aware of situations where they in fact only allow a maximum of 12 months. <br /><br />The Taxation Ruling IT 2622 explains in more detail the Tax Office’s approach. <br /><br />The case of <i>Walker v Walker</i> [2022] NSWSC 1104 similarly explores many of the key principles in this area - and indeed appears to support a conclusion that the administration process of an estate will be completed, at least for the purposes of present entitlement for tax, at a point in time even earlier than what the Tax Office has historically suggested in the IT. <br /><br />That is a beneficiary may be held to have a vested and indefeasible interest to the income (and be specifically entitled) far earlier than might otherwise be assumed. Furthermore, executors may have a duty to ensure tax imposts are legitimately minimised by protectively making interim distributions to beneficiaries. <br /><br />As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the Florence and the Machine song 'I’m not calling you a liar’. <br /><br />Listen here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/u4iseF_FBn8" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-73713066882093610672023-11-28T07:00:00.009+10:002023-11-28T07:00:00.132+10:00Journal** entries<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh1DdwQ3dmuYapCMB7X6cSDS66oFAYzAO9QNZj20eoVkmgkG378OiOns8j82BGedP1ZG409JecoJ6LHumb0ODQs-WfMcfYBfcOfYWa38_UTWxKpvR05zWPlIlLmupTpduwiY8RB1uBDhMZ4cBUmK6NyJv4PToD6v3UJZaCTU_ne6Y_KCbGdPxlacofV/s560/v28.11.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Journal** entries by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh1DdwQ3dmuYapCMB7X6cSDS66oFAYzAO9QNZj20eoVkmgkG378OiOns8j82BGedP1ZG409JecoJ6LHumb0ODQs-WfMcfYBfcOfYWa38_UTWxKpvR05zWPlIlLmupTpduwiY8RB1uBDhMZ4cBUmK6NyJv4PToD6v3UJZaCTU_ne6Y_KCbGdPxlacofV/w320-h180/v28.11.2023.jpg" title="View Legal blog - Journal** entries by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>Recent posts have considered various aspects of the leading cases where two parties owe mutual liabilities or obligations, and the ability to set off the liabilities against each other through a book entry. <br /><br />It is however important to note that generally, journal entries of themselves have no legal effect. <br /><br />Arguably the leading case in this regard is <i>Manzi v Smith</i> [1975] HCA 35. <br /><br />The key quote out of this decision is as follows - <br /><blockquote>‘We were referred to cases in which a payment of money was held to have been made by means of entries in books of account. But in those cases the entries represented the agreement of the appropriate parties…. <br /><br />These decisions, quite clearly, are not authority for the proposition for which they were advanced, namely, that a payment of money was made by the making by the company of a journal entry in the books of account without reference to, or without the agreement of, the persons said to be the recipients of the money. The company's assertions in its books of account did not establish the indebtedness of the appellants or any payment of money in discharge of that indebtedness.’ </blockquote>The Tax Office similarly has confirmed that while book entries record transactions having legal consequences, they do not of themselves constitute transactions. In other words, a unilateral action by one of the parties, such as a mere entry in its books of account, does not change the liabilities between the parties. <br /><br />This means that in any transaction it is important that there is a valid binding agreement (or agreements) supporting the existence of the arrangements to which any journal entries purportedly relate. <br /><br />As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the Johnny Cash song 'The singing star’s queen'. <br /><br />View here: <br /><div><br /></div><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/SjpMdGc09ok" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-84610049985979575842023-11-21T07:00:00.010+10:002023-11-21T07:00:00.147+10:00Walking the line** - understanding what does ‘cashed' means<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjsuGcBrxCnsGVh7KxWoe3RQEmTXMjQ62FxrZ8NwafDzJ3Temo_Se4TT38MNPtOf3cJPd_uUrCETRMrcHDibDWkplQhNova0Res6BkK3j6sPsasWJyHRjJvO9y_xpEsrgsZnRSXkKFBJ3pxp5ywZnQQhH3dmBh3RWrnnLazKpBfEFpiVRL5ZjVy6pPe/s560/u21.11.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Walking the line** - understanding what does ‘cashed' means by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjsuGcBrxCnsGVh7KxWoe3RQEmTXMjQ62FxrZ8NwafDzJ3Temo_Se4TT38MNPtOf3cJPd_uUrCETRMrcHDibDWkplQhNova0Res6BkK3j6sPsasWJyHRjJvO9y_xpEsrgsZnRSXkKFBJ3pxp5ywZnQQhH3dmBh3RWrnnLazKpBfEFpiVRL5ZjVy6pPe/w320-h180/u21.11.2023.jpg" title="View Legal blog - Walking the line** - understanding what does ‘cashed' means by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>Last week’s post focused on the issue surrounding ensuring an SMSF maintains compliance following the death of a member. <br /><br />One issue raised following that post related to how the superannuation rules work in the context of the requirement that a member’s benefits must be ‘cashed as soon as practicable’ after the death of a member, which is set out under the <i>Superannuation Industry (Supervision) Regulations</i> at regulation 6.21(1). <br /><br />In particular, the question is whether a death benefit can be simply transferred to a surviving member’s account by way of journal entry. <br /><br />In this regard, in most other areas of the law, where two parties owe mutual liabilities or obligations, they can be set off the liabilities against each other through a book entry (see our earlier post in relation to Spargo case). <br /><br />The Tax Office has confirmed that the principle in Spargo’s case can also apply to SMSFs where there are mutual liabilities between the relevant fund and another party (see ATO ID 2015/2). <br /><br />The Tax Office has confirmed in ATO ID 2015/3 however that a death benefit cannot be satisfied simply by way of journal entry, as death benefit dependants do not owe anything to the fund, that is there is no mutual liability to set off against the SMSF. <br /><br />Therefore, death benefits must actually be paid to the death benefit dependant by the transfer of ownership of assets out of the SMSF. <br /><br />The Tax Office also confirms that the <i>Superannuation Industry (Supervision) Regulations</i> do not allow for payments to be made to members by way of journal entry. <br /><br />In particular, regulation 6.17(2) requires payments to be transferred out of the SMSF. <br /><br />Unfortunately, this requirement for formal payment can in a practical sense trigger unnecessary transaction costs as well as complicating and delaying the death benefit payment process. <br /><br />As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the Johnny Cash song 'I walk the line'. <br /><br />View here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/xObSJWIWui0" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-62192334235937747202023-11-14T07:00:00.012+10:002023-11-14T07:00:00.146+10:00Birth, school, work, death** - SMSF trustee compliance on member death<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj6TPZESGlnmBrqvnZV3jNJ7OYvl7CERhIOsZS1xO3K1ILj1Oa5OcklOjmxD8fMW8TRMNfZlGoseC9Mfg3N_XpFEyrl4rbGAuyzSmH22DmoRrg_bMQwRp1-dnqfrMA0jYDP8WuGonbPXL3cKnE28NC0SaYEqQxSCUes9oWFFp0c8i9OEh9hVoVzVNev/s560/t14.11.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Birth, school, work, death** - SMSF trustee compliance on member death by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj6TPZESGlnmBrqvnZV3jNJ7OYvl7CERhIOsZS1xO3K1ILj1Oa5OcklOjmxD8fMW8TRMNfZlGoseC9Mfg3N_XpFEyrl4rbGAuyzSmH22DmoRrg_bMQwRp1-dnqfrMA0jYDP8WuGonbPXL3cKnE28NC0SaYEqQxSCUes9oWFFp0c8i9OEh9hVoVzVNev/w320-h180/t14.11.2023.jpg" title="View Legal blog - Birth, school, work, death** - SMSF trustee compliance on member death by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>Ensuring an SMSF continues to satisfy the rules in relation trusteeship following a member’s death can be problematic, particularly when specific strategies have not been implemented as part of a comprehensive estate plan. <br /><br />As is well understood, a complying SMSF must have all individual trustees as members and vice versa. <br /><br />Where an individual member dies the superannuation legislation allows 6 months for an SMSF to ensure compliance. Often, for funds that are established as 2 member funds, this is achieved via the appointment of a corporate trustee, with the remaining member as the sole director. <br /><br />The superannuation rules also allow a grace period for non-compliance from the date of death until just before the death benefits commence to be paid, where the legal personal representative (LPR) can act as the replacement trustee. <br /><br />Most modern SMSF trust deeds reflect the superannuation legislation and have a discretionary provision that automatically appoints the LPR as the trustee on the death of the member. <br /><br />While there can be confusion about the way the rules work, the conservative position is that the 6 month grace period starts on the death of the member. Therefore, regardless of when the death benefit commences to be paid, the trusteeship must be valid no later than 6 months following the date of a member’s death. <br /><br />Practically, as set out in earlier posts, these rules further highlight the benefits of having a corporate, as opposed to individual, trustee. <br /><br />As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the Godfathers song 'Birth, School, Work, Death'. <br /><br />View here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/QO5dcW0P75M" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-77775397993075751922023-11-07T07:00:00.010+10:002023-11-07T07:00:00.125+10:00What is so special ** about 'vested' interests?<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhHHFNN7xbjSYu7WZK7hEAnrkBzlxvshrRg_6HCu_vyEYxnfHwEnCuYYcqGENUqlxKZPjp4seGmGSGECNPDUOC_tnp6HO8Qhzn-R4e6nwMGmcDij-cNJ-Q_Kc06utSXhO1VRzpTq7sddy1k8upn94tJoax3j0fSzp6xBdyrBTtTuTxhcsCiQm_s6bwL/s560/s7.11.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - What is so special ** about 'vested' interests? by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhHHFNN7xbjSYu7WZK7hEAnrkBzlxvshrRg_6HCu_vyEYxnfHwEnCuYYcqGENUqlxKZPjp4seGmGSGECNPDUOC_tnp6HO8Qhzn-R4e6nwMGmcDij-cNJ-Q_Kc06utSXhO1VRzpTq7sddy1k8upn94tJoax3j0fSzp6xBdyrBTtTuTxhcsCiQm_s6bwL/w320-h180/s7.11.2023.jpg" title="View Legal blog - What is so special ** about 'vested' interests? by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>Following on from last week's post, a related issue often comes up in the context of how wills are crafted. <br /><br />In particular, wills often provide that a gift to a beneficiary is subject to the person not having already 'died or dying before attaining a vested interest'. <br /><br />The decision in <i>Serwin v Dolso</i> [2020] NSWSC 370 explores this phrase in some detail. <br /><br />In the case the relevant beneficiary survived the willmaker by 30 days (as required under the various state based succession laws) and long enough to receive the distribution of some personal items, but not long enough to receive a physical distribution of the gift anticipated by the will. This was because at the time of the beneficiary's death most aspects of the administration process remained incomplete (for example there were outstanding debts, assets yet to be collected and tax affairs unresolved). <br /><br />The court confirmed that the words ''attaining a vested interest'' could have one of 3 meanings, namely: <br /><ol style="text-align: left;" type="a"><li>that they are tautologous and mean the same as 'if the beneficiary dies before, or does not survive the willmaker'; </li><li>that they mean 'vested in possession'; or</li><li>that they mean 'before the estate is fully administered and available to be distributed'.</li></ol> While confirming that the exact provisions of a will are also critical, here the 'vested interest' phrase was held to mean “before the estate is fully administered and available to be distributed”. <br /><br />In other words, the addition of the words 'vested interest' meant that merely surviving the willmaker was insufficient. <br /><br />That is, a reference in a will to attaining a vested interest will usually be held to mean something more than merely surviving the willmaker, even if the period of survivorship exceeds 30 days (see <i>Arnott v Kiss</i> [2014] NSWSC 1385 and <i>Kinloch v Manzione</i> [2022] ACTSC 76, a case where CGT Event K3 was also likely triggered, given the relevant beneficiaries appeared to be non-residents for Australian tax purposes).<br /><br />Furthermore, it was confirmed that, similar to the situation of a beneficiary under a discretionary trust, a residuary beneficiary under a will has no equitable interest in the assets of a deceased estate. <br /><br />Rather, the only right which a residuary beneficiary has is to compel the due administration of the deceased estate by the executor. The trust created by every will (regardless of whether testamentary trusts are created) is to preserve the assets, to deal properly with them, and to apply them, in the due course of administration, for the benefit of those interested. <br /><br />Relevantly, the Tax Office adopts a similar approach, and generally only allows a maximum of 3 years for the administration of an estate to remain in place (during which time the concessional excepted trust income provisions can apply). <br /><br />As explained in other View posts however, we are aware of situations where the Tax Office only allow a maximum of 12 months to administer an estate. <br /><br />As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the Garbage song 'Special'. <br /><br />View here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/raRGnueg8Lo" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-79860370195226915382023-10-31T07:00:00.012+10:002023-10-31T07:00:00.146+10:00The fine line (& time)** between being entitled … and not<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjg_Si7RuxY6JXiAhdXxD7o3OZzlA9lDFHf9YcEYJiaLZdpuaF3AHPc811jf5a_RpLAX11tecr55vXnkpCGP7RqB9w17kwOXMss4fRj8A2VB4a2m7i4Q5Qjfy7Z8wO7sD23iVfT5SvdfU2nEYQ77_d7puT9-TDy1UfBGB4NDj2A45GjN__0Q4LobtZa/s560/r31.10.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - The fine line (& time)** between being entitled … and not by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjg_Si7RuxY6JXiAhdXxD7o3OZzlA9lDFHf9YcEYJiaLZdpuaF3AHPc811jf5a_RpLAX11tecr55vXnkpCGP7RqB9w17kwOXMss4fRj8A2VB4a2m7i4Q5Qjfy7Z8wO7sD23iVfT5SvdfU2nEYQ77_d7puT9-TDy1UfBGB4NDj2A45GjN__0Q4LobtZa/w320-h180/r31.10.2023.jpg" title="View Legal blog - The fine line (& time)** between being entitled … and not by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>An often over looked aspect of estate planning related to the payment of death benefits from a superannuation fund. <br /><br /><div>While with a gift under a will a beneficiary who dies after the willmaker, but before the distribution is made, will still (through their own estate) be entitled, this generally is not the case with superannuation benefits. <br /><br />Arguably the leading case in this area is <i>Webb v Teeling</i> [2009] FCA 1094. <br /><br />In summary the factual scenario was as follows - <br /><ol style="text-align: left;"><li>a member of a super fund had passed away, validly nominating a dependant to receive the death benefit; </li><li>the dependant was alive at the time of the member’s death;</li><li>the dependant however subsequently died before the death benefit was paid and their legal personal representative (LPR) sort payment to the originally nominated beneficiary's estate.</li></ol> It was held that the death benefit could not be paid to the LPR of the deceased dependant because they were neither: <br /><ol style="text-align: left;" type="a"><li>a dependant of the deceased member; or</li><li>the deceased member’s LPR.</li></ol> With the aid of hindsight, the workaround in similar situations is to ensure that if the nominated beneficiary dies before the death benefit is paid, the funds should pass (ideally under a binding nomination) to the LPR of the member. <br /><br />The member's will should then direct the amount specifically to the intended recipients and can do so without restriction as the superannuation rules will have been complied with by the initial payment to the member's LPR. <br /><br />As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** for the trainspotters, ‘Fine Time’ is a song from New Order. <br /><br />View hear (sic): <br /><br /></div><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/YVqzsVNGM7" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-7013795628440688442023-10-24T07:00:00.016+10:002023-10-24T07:00:00.140+10:00Just because there's knocking** for a testamentary trust statutory will doesn't mean the court will answer<div style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhwi1XaFo_QEV3CoHXSsjgYiPxNOi2iXZC10T_Cp63HMa7NT8cpdrgjIJzHPE2o8FgUxURJ26ap-p8LWChYw5QgQpBpA43PC5Duv_SvH_GvVZyLczR-L5mVZapc2Rj_MG4JNgRPKGDhsK0wpWUUKdHfc7mT1RUheKDokvnRqedOBYgMr2yc2RjIBt9z/s560/q24.10.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Just because there's knocking** for a testamentary trust statutory will doesn't mean the court will answer by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhwi1XaFo_QEV3CoHXSsjgYiPxNOi2iXZC10T_Cp63HMa7NT8cpdrgjIJzHPE2o8FgUxURJ26ap-p8LWChYw5QgQpBpA43PC5Duv_SvH_GvVZyLczR-L5mVZapc2Rj_MG4JNgRPKGDhsK0wpWUUKdHfc7mT1RUheKDokvnRqedOBYgMr2yc2RjIBt9z/w320-h180/q24.10.2023.jpg" title="View Legal blog - Just because there's knocking** for a testamentary trust statutory will doesn't mean the court will answer by Matthew Burgess" width="320" /></a></div><div><br /></div>Last week’s post considered a leading statutory (or court ordered) will case that approved a will incorporating testamentary trusts. <br /><br />The decision in a further case in this area, namely <i>Re RD</i> [2021] QSC 65, highlights however that much will turn on the exact factual matrix as to whether a proposed testamentary trust will is approved by a court. <br /><div class="separator" style="clear: both; text-align: left;"><br /></div>Relevantly in this case the court had to decide between 2 radically different draft wills submitted, one with 5 testamentary trusts, and the other with none (and all gifts passing directly into the names of the intended beneficiaries). Relevantly, the percentage allocations between each main beneficiary were identical under both 2 wills. <br /><br />The lawyer proposing the testamentary trust will argued that “a properly advised person in possession of a substantial trust fund, would be concerned to ensure that the substantial inheritance they leave be held in a protected testamentary trust structure for the protection of their chosen beneficiaries”, which would include “asset protection from third parties such as other spouses, or from other sources, whether during the beneficiary’s lifetime, or after their death, if they have already inherited”. <br /><br />In contrast the lawyer proposing the simple will provided the following context which the court accepted: <br /><ol style="text-align: left;"><li>The main beneficiaries under the wills all argued that they did not believe the incapacitated person would want to have 'tied up' the wealth in a testamentary trust with no fixed entitlement. </li><li>As the proposed testamentary trusts were wholly discretionary, any benefit that would flow to the intended beneficiaries would be “merely an expectation or hope” (see <i>Bowers v Bowers</i> [2020] NSWSC 109).</li><li>The potential beneficiaries of the testamentary trusts were much broader than the immediate family – which was contrary to the comments of the lawyer proposing the testamentary trust will that there was a need to ensure that people who were effectively strangers to the incapacitated person, and who had not contributed in any way to his well-being, should not benefit.</li><li>Although there may have been some asset protection benefits, the testamentary trust will involved:</li><ol type="i"><li>unnecessary complexity in its administration over the lifetime of the beneficiaries; </li><li>significant costs being incurred by the estate over the lifetime of the trusts, by reason of the fees incurred by the executor and trustee (Perpetual Trustees), in its management of the trusts over a prolonged period of time;</li><li>uncertainty as to what the beneficiaries might receive from the estate, given the discretionary nature of the trusts, such that they might not receive any more than some proposed specific pecuniary gifts; and</li><li>uncertainty as to whether there would be sufficient funds in the estate on death to give effect to the proposed specific pecuniary gifts.</li></ol><li>Therefore, the complexity, additional cost and uncertainty as to what the beneficiaries might receive under the testamentary trust will proposed outweighed any potential asset protection benefits.</li><li>The draft testamentary trust will also contained a number of anomalies which would have required amendments by the court.</li></ol> The court ultimately confirmed: <br /><ol style="text-align: left;" type="a"><li>The central issue for the court’s determination in statutory will cases is what will would the incapacitated person probably have made, if they had capacity.</li><li>The cases where testamentary trust wills have been approved, such as the one mentioned in last week's post (<i>Doughan v Straguszi</i> [2013] QSC 295) were distinguishable both because of the facts involved, and because in each case the approval of a will incorporating testamentary trusts was supported by the likely beneficiaries.</li><li>It was likely that the incapacitated person here would have (if they had capacity) taken into account and given considerable weight to the views expressed by his mother and his father (who both opposed a testamentary trust will).</li><li>It was therefore unlikely that a reasonable person with capacity, would favour a convoluted will under which five testamentary trusts are imposed on his favoured beneficiaries, as opposed to a straightforward, simple will, benefiting those family members directly.</li></ol> Separately, the court also confirmed that the execution of a non-lapsing binding death benefit nomination (BDBN) was an act in relation to a financial matter within the meaning of section 33(2) of the <i>Guardianship and Administration Act 2000</i> (Qld) (see another case explored in previous posts, namely <i>Re SB; Ex parte AC</i> [2020] QSC 139). The incapacitated person's administrator (effectively his enduring attorney) was therefore able to sign the BDBN on his behalf. <br /><br />The signing of such a BDBN was critical because the bulk of the incapacitated person's assets were held via superannuation and therefore to achieve the estate planning objectives 100% of his superannuation death benefits needed to be paid to his legal personal representative (to then be dealt with in accordance with the statutory will). <br /><br />As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the Rolling Stones song ‘Can't you hear me knocking?'. <br /><br />View here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/cpwsTyD6XQg" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-43470715602759808582023-10-17T07:00:00.011+10:002023-10-17T07:00:00.154+10:00Another (brick in the wall)** - or statutory will case (as the case may be)<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgWx_dA8Ys-O85G-UItT47MRtbRFNmVYx88KwxNminK6RD8AKQveLLEvS8cwD6SVrJmqwgXjkybfAR_5Vg8wGalkRtETO2OP0IFPGc5QIbsSgigoAkY-AY-P-wwtHRuWn8jB9mGWRDK8weQnMpnrhXp_q_EyxEtnryesYkkqS0tcjAw6xQ5pQHB9kjr/s560/p17.10.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Another (brick in the wall)** - or statutory will case (as the case may be) by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgWx_dA8Ys-O85G-UItT47MRtbRFNmVYx88KwxNminK6RD8AKQveLLEvS8cwD6SVrJmqwgXjkybfAR_5Vg8wGalkRtETO2OP0IFPGc5QIbsSgigoAkY-AY-P-wwtHRuWn8jB9mGWRDK8weQnMpnrhXp_q_EyxEtnryesYkkqS0tcjAw6xQ5pQHB9kjr/w320-h180/p17.10.2023.jpg" title="View Legal blog - Another (brick in the wall)** - or statutory will case (as the case may be) by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>Recent posts have looked at various aspects of the statutory (or court ordered) will regime. <br /><br /><i>Doughan v Straguszi</i> [2013] QSC 295 provides another example of how the courts approach these provisions. <br /><br />In summary: <br /><ol style="text-align: left;"><li>A will maker had lost capacity leaving a will that did not deal with a number of assets and indeed was inaccurate in relation to one of the main assets, being the family farm. </li><li>The will maker’s son was involved in litigation that had some prospect of ultimately resulting in his bankruptcy.</li><li>The proposed court ordered will created testamentary trusts, primarily to benefit the will maker’s daughter and grandchildren.</li></ol>In approving the will, despite the clear financial difficulties of the son, the court confirmed the following factors, were critical: <br /><ol style="text-align: left;"><li>There was significant evidence to show the longstanding connection of the family with the farming property. </li><li>There was no doubt, based on the evidence, that the will maker wanted the property to stay in her family line for future generations.</li><li>There was no evidence to suggest that the use of the testamentary trusts to benefit the daughter and grandchildren was a mechanism to simply shelter the wealth for the ultimate benefit of the son, once his financial difficulties had been resolved. This was an important distinction compared to other cases where applications for a statutory will incorporating testamentary trusts were rejected on the basis that they were simply designed to provide de facto control of wealth to a beneficiary who is otherwise facing bankruptcy.</li><li>In other words, here, the intention was not to defeat the son’s creditors, rather it was to ensure that the substantive assets of the family were held in an appropriate structure for the benefit of future generations.</li><li>The fact that there were also errors and unnecessary complications with the pre-existing will was also seen as important.</li><li>Ultimately, the court was in no doubt that the will being proposed was precisely what the will maker would have done had she still had the capacity to do so.</li></ol>As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the Pink Floyd song 'Another brick in the wall'. <br /><br />View here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/YR5ApYxkU-U" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-81279529969943364442023-10-10T07:00:00.005+10:002023-10-10T07:00:00.137+10:00Easy** - Court criteria for statutory wills<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjaYiW58k5xjy_i9_UMwkWLho-g6NyG3hSJJaSf-pmD2uKEmSg8uYD2fNWGl4MqksN1o3uIfsL0v08bku6XKIR_O7cxi9jWx6MAkKHmWzxFROjLI8vhv9sv2Ggc0mwK5uDii-_t5aPVUoEIf1E5HYTvrQCaFdDjb1Wy0eJPcl4xIBs04aLyDzDvZ9qn/s560/o10.10.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Easy** - Court criteria for statutory wills by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjaYiW58k5xjy_i9_UMwkWLho-g6NyG3hSJJaSf-pmD2uKEmSg8uYD2fNWGl4MqksN1o3uIfsL0v08bku6XKIR_O7cxi9jWx6MAkKHmWzxFROjLI8vhv9sv2Ggc0mwK5uDii-_t5aPVUoEIf1E5HYTvrQCaFdDjb1Wy0eJPcl4xIBs04aLyDzDvZ9qn/w320-h180/o10.10.2023.jpg" title="View Legal blog - Easy** - Court criteria for statutory wills by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>Last week’s post provided a summary of the key evidentiary issues in relation to any application for a court ordered will. <br /><br />Even if each of the issues flagged last week can be adequately addressed, the court still retains complete discretion as to whether it will approve an application. <br /><br />The key issues that a court must be satisfied about before allowing a statutory will to be created are as follows: <br /><ol style="text-align: left;"><li>anyone who may have a potential interest in the estate must have the opportunity to address the court; </li><li>the person applying for the court ordered will must be deemed by the court to be the most appropriate person; and</li><li>the court must be satisfied that it is appropriate in all the circumstances to approve the will. This invariably means that the court must be satisfied that the proposed will is reflective of what the will maker would have made if they had the required capacity.</li></ol>In the context of the above, the decision in the (arguably aptly named) case of <i>Wills v NSW Trustee</i> [2022] NSWSC 1098 is relevant. <br /><br />The main asset in this case was a property at North Bondi, valued at more than $7M. The sole owner had lost capacity and had no relatives and no will; meaning on death her estate would pass to the State Government under the intestacy rules. <br /><br />A neighbour at North Bondi (named Wills) brought an application for a statutory or court ordered will for the entire estate to pass to Wills, which was rejected with the court confirming: <br /><ol style="text-align: left;" type="a"><li>There was evidence to support the sole owner had a preparedness to die intestate even if that meant that 'the Government' took the benefit of her estate.</li><li>Furthermore, there was insufficient evidence to support a conclusion that the proposed statutory will was one that was reasonably likely to have been made, if the sole owner were to have had capacity (see <i>GAU v GAV</i> [2016] 1 Qd R 1 and <i>Re K’s Statutory Will</i> (2017) 96 NSWLR 69).</li><li>An informal will (a concept explored in other View posts) produced by Wills (that gave the entire estate to her) did not assist the court in the application for a statutory will, particularly given that it was prepared and signed in circumstances sufficiently 'suspicious' to require proof that the sole owner 'knew and approved' the contents of it. A point reinforced by the fact that Wills was the sole owner's guardian and provided care and assistance and therefore owed fiduciary duties.</li><li>Ultimately, Wills' application for a court ordered will was not in any material way for the benefit, and in the interests, of the sole owner. Rather it was an attempt to legitimise the informal will; with the veracity of that document held by the court to be best tested following the death of the sole owner, assuming a court application was then made for the informal will to be admitted to probate.</li></ol> As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br /><br />** For the trainspotters, the title of today's post is riffed from the Hunters and Collectors song 'Easy'. <br /><br />View here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/qKZFjYoXTjw" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-78174915858221358372023-10-03T07:00:00.013+10:002023-10-03T07:00:00.139+10:00Dear Judge: Do you see what I see** - how to get a statutory will<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjmhEZdkmj6-te0dG0qE4xPhR8rSJuWSNkBMyjQ1aFB51Dexqs0WMKI6pku9uew1y0Q1TLFl60hNON6CQOnyiJUGBJY6Rms5KZVZjG2ZGX7OpcvP2dScMZBcD1G96A96Yon-4FM6w_KmGQUp249kSsZplsmVpU464-ZZ6NpI9LpYJ84wmUmhCjrDXxk/s560/n3.10.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Dear Judge: Do you see what I see** - how to get a statutory will by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjmhEZdkmj6-te0dG0qE4xPhR8rSJuWSNkBMyjQ1aFB51Dexqs0WMKI6pku9uew1y0Q1TLFl60hNON6CQOnyiJUGBJY6Rms5KZVZjG2ZGX7OpcvP2dScMZBcD1G96A96Yon-4FM6w_KmGQUp249kSsZplsmVpU464-ZZ6NpI9LpYJ84wmUmhCjrDXxk/w320-h180/n3.10.2023.jpg" title="View Legal blog - Dear Judge: Do you see what I see** - how to get a statutory will by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>In some circumstances, a person who does not have testamentary capacity can have a court make a will for them. <br /><br />Before embarking on a court application, there are a number of issues that need to be addressed including:<br /><ol style="text-align: left;"><li>confirmation that the will maker lacks the required capacity; </li><li>a complete summary of the reasons for the application, together with details of all wealth of the will maker;</li><li>a comprehensive draft of the intended court ordered will;</li><li>details of any previous estate planning exercises the will maker was involved in, together with evidence about their intentions historically and what their probable intentions would be currently (but for the fact that they lack capacity); and</li><li>all details of the wider factual matrix, including whether there is any realistic prospect that someone may look to challenge the deceased estate.</li></ol>Assuming all of the above issues can be addressed, the court will only approve an application in relatively limited circumstances. <br /><br />Next week’s post will list out the exact steps the court applies in this regard. <br /><br />As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the Hunters and Collectors song 'Do you see what I see?'. <br /><br />View here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/civzfZ_3uVc" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-10400979650017794802023-09-26T07:00:00.012+10:002023-09-26T07:00:00.142+10:00Who should be appointed as an executor - Better the Devil you know(?)**<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhCw1XAfJGUHteXqFppl9sy6q6svVX5DqIADl5NbCEb7a93kHjUVff_uz3t-aWt9f9sRssowswfr8PS2bp34jkLgMP6t5w4QXOpI4-E-wv2VX2K2aU2GN7MU6aKZu7Ca1tEwTaycbAsRNy1f9Em6uWrs-S26aJ93gnPvdBEmZ7Uka7X2DZWfxOeJ0RZ/s560/m26.9.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Who should be appointed as an executor - Better the Devil you know(?)** by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhCw1XAfJGUHteXqFppl9sy6q6svVX5DqIADl5NbCEb7a93kHjUVff_uz3t-aWt9f9sRssowswfr8PS2bp34jkLgMP6t5w4QXOpI4-E-wv2VX2K2aU2GN7MU6aKZu7Ca1tEwTaycbAsRNy1f9Em6uWrs-S26aJ93gnPvdBEmZ7Uka7X2DZWfxOeJ0RZ/w320-h180/m26.9.2023.jpg" title="View Legal blog - Who should be appointed as an executor - Better the Devil you know(?)** by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>Previous posts have considered some of the key questions to ask in any estate planning situation - the following View articles also set out some of the key issues to be aware of: <br /><br /><a href="https://viewlegal.zendesk.com/hc/en-au/articles/360036531992-What-is-an-executor-" target="_blank">https://viewlegal.zendesk.com/hc/en-au/articles/360036531992-What-is-an-executor-</a> <br /><br /><a href="https://viewlegal.zendesk.com/hc/en-au/articles/360036532092-Testamentary-trusts-overview" target="_blank">https://viewlegal.zendesk.com/hc/en-au/articles/360036532092-Testamentary-trusts-overview</a> <br /><br />Generally it is critical to ensure the choice of executor is very carefully considered. <br /><br />At a threshold level, an executor should be someone the willmaker trusts implicitly. <br /><br />Other key attributes to consider can include:<br /><ol style="text-align: left;"><li>Financial literacy and acumen;</li><li>Emotional strength;</li><li>Likely ability to perform the role in the worst of circumstances;</li><li>Age and health;</li><li>Previous experience;</li><li>Knowledge of and strength of relationship with beneficiaries;</li><li>Knowledge of and strength of relationship with other executors;</li><li>Residency;</li><li>Expectations in relation to payment;</li><li>Overall willingness to act.</li></ol>The executor of the will is also known as the trustee. While the trustee of the testamentary trust is often the same as the executor, it can however be someone different. <br /><br />Generally there can be up to 4 executors appointed at any one time. Particularly if only one executor is appointed initially, having at least one back up is generally advisable. <br /><br /> As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** for the trainspotters, the title today is riffed from the Kylie Minogue song 'Better the devil you know'. <br /><br />View here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/tto_nmsND_o" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-54115917248426309532023-09-19T07:00:00.018+10:002023-09-19T07:00:00.140+10:00When is the right time** to get structuring of business assets right?<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg7eSniruEhE17Y4dTiL5ZEBG_Z3SIVMnZPhuGfacZzW1WK7GzNgCm95TGxsPprsEnSuykN-75JPf3FMtBjK1Tv36E8kHcki7NhZBkpXbW04dUTykfJq5ZhZ7RHD3pYwKXg4JLu72QNqXISZFqCnLH7dAT-vG8sHwlI7vF6PnikOifgEdVhdiTzzvMs/s560/l19.9.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - When is the right time** to get structuring of business assets right? by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg7eSniruEhE17Y4dTiL5ZEBG_Z3SIVMnZPhuGfacZzW1WK7GzNgCm95TGxsPprsEnSuykN-75JPf3FMtBjK1Tv36E8kHcki7NhZBkpXbW04dUTykfJq5ZhZ7RHD3pYwKXg4JLu72QNqXISZFqCnLH7dAT-vG8sHwlI7vF6PnikOifgEdVhdiTzzvMs/w320-h180/l19.9.2023.jpg" title="View Legal blog - When is the right time** to get structuring of business assets right? by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>Last week, we had a client wanting to revisit their business structure, and in particular, the decision to run all aspects of the business via the one legal entity (in this instance a company). <br /><br />The particular issue of focus was in relation to the risks that attach to certain items of plant and equipment that, in a worst case scenario, could cause serious injury (or death) to employees. <br /><br />The same items of plant and equipment were owned by the entity that held the goodwill of the business as well as other real property assets. <br /><br /><div>While there were a myriad of issues that needed to be addressed, at a basic level, we explored the movement of the items of plant out of the existing company into a 'standalone' special purpose vehicle (‘SPV’) that would house the plant and equipment. The SPV would then lease the plant and equipment back to the operating entity - and thereby comply with the rules of ‘domino theory’ (as explored in previous View posts). <br /><br />The work involved in achieving this part of the restructure was not significant and given that in the circumstances it could be done without any tax or stamp duty consequences, the customer saw it as a sensible step to implement immediately. <br /><br />While the exact stamp duty and tax outcomes will depend on the circumstances, it is worth keeping this style of SPV solution in mind as an example that there can be relatively simple restructure ideas implemented without significant time delays or cost investment. <br /><br />As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** for the trainspotters, the title today is riffed from the Hoodoo Gurus song 'The Right Time'. <br /><br />View here:<br /></div><div><br /></div><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/i-3lUBQADoE" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-86027630139098103942023-09-12T07:00:00.013+10:002023-09-12T07:00:00.154+10:00Amending testamentary trusts: a non-zero possibility**?<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi7c5Aks64Kx2d91xjXTFHjF_S5KS4YeokKkkvRgP5L6Zhn0cgoM3tVJWj9Es54POv5DMazxd1ZaQAwhWeUO1976Or2UIKjFxh4Sc5Uh0suIxX7gR9UnzAwkyanwHbsHGqgSFNkIS-r7wg0dZpQIP1GOKVkH4ADS8ifKHVAP5z70LALrmU5ixNaK_UJ/s560/k12.9.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Amending testamentary trusts: a non-zero possibility**? by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi7c5Aks64Kx2d91xjXTFHjF_S5KS4YeokKkkvRgP5L6Zhn0cgoM3tVJWj9Es54POv5DMazxd1ZaQAwhWeUO1976Or2UIKjFxh4Sc5Uh0suIxX7gR9UnzAwkyanwHbsHGqgSFNkIS-r7wg0dZpQIP1GOKVkH4ADS8ifKHVAP5z70LALrmU5ixNaK_UJ/w320-h180/k12.9.2023.jpg" title="View Legal blog - Amending testamentary trusts: a non-zero possibility**? by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>The ability to amend a testamentary trust after its establishment (and in particular following the death of the will maker) is an area of some contention. Often specialist advisers argue that changing any terms of a will after death is a breach of the rule against delegation of will making powers. <br /><br />One aspect of the issue that is however very clear is that unless there is a power to vary included in the terms of a testamentary trust, the only way in which to change its terms is by way of a court application. <br /><br />In all Australian states, there is legislation that empowers the court to vary the terms of a trust. One example of a case in this regard is <i>Robert Thomas Grant as trustee of the Grant Family Testamentary Trust</i> [2013] NSWSC 1603 <br /><br />In this case, a testamentary trust had been setup by the trustee’s late father. <br /><br />Some years after its establishment, the trustee wanted to obtain finance to make improvements to one of the real properties owned via the trust. <br /><br />Financiers refused to lend any funds on the basis that the powers of the trustee set out under the testamentary trust did not include a raft of provisions normally expected to be seen in a trust instrument, including the power to lend, the power to open and operate accounts with financial institutions, the power to delegate, the power to borrow and a right of indemnity. <br /><br />Using a discretion granted to the court in New South Wales to vary a trust instrument where it deems it ‘expedient for the management of the trust’, all the deficiencies identified by financiers were remedied by the court approved variation. <br /><br />Interestingly, part of the application included a specific power to allow the trustee to unilaterally make future amendments to the terms of the trust. While other cases have refused to include such a power, here the court was comfortable to allow it, on the basis that any amendment would require the consent of all potential beneficiaries. This prohibition was seen as ensuring that the trustee could not do anything to alter the ‘substratum’ of the trust. <br /><br />As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the At the drive in song 'Non-zero possibility’. <br /><br />Listen here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/OhXm7XjtokA" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-18058518015687498022023-09-05T07:00:00.008+10:002023-09-05T07:00:00.153+10:00Excepted trust income and ‘bare’** trusts<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEivZTLv1LindN7_Cxs_B3cNem-K_DE0JAqMDMnp6aiPov1QIDeD8KGXmDbmLoiJK1e1GrNfjrKX9H93cHlNf6vhiIsXBhOuCrjCv_FsuraYDVgWVs5Ut-CCAGGZwUyhu3111gIWhnnENe2UzZR-JmT_IW-L5nCRAofp-Psfv-KLShRGz2m_4U5zxeC8/s560/j5.9.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Excepted trust income and ‘bare’** trusts by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEivZTLv1LindN7_Cxs_B3cNem-K_DE0JAqMDMnp6aiPov1QIDeD8KGXmDbmLoiJK1e1GrNfjrKX9H93cHlNf6vhiIsXBhOuCrjCv_FsuraYDVgWVs5Ut-CCAGGZwUyhu3111gIWhnnENe2UzZR-JmT_IW-L5nCRAofp-Psfv-KLShRGz2m_4U5zxeC8/w320-h180/j5.9.2023.jpg" title="View Legal blog - Excepted trust income and ‘bare’** trusts by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>A previous post has considered various aspects of the statement that ‘every will contains a testamentary trust’. <br /><br />One example of where basic or 'bare' testamentary trusts exists includes where a gift is given to a beneficiary who does not have legal capacity (for example, because they are under the age of 18). <br /><br />This was the factual matrix in the Tax Office private ruling mentioned in last week’s post, namely 1011602878465. <br /><br />In particular – <br /><ol style="text-align: left;"><li>The beneficiary had received gifts of money which were invested on their behalf by their parent. </li><li>The money had been sourced from several places, including money left to the beneficiary from a deceased estate.</li><li>The money was held in trust by the parent in a bank savings account named '[Parent's name] in trust for [child's name]'.</li><li>Under the terms of the relevant will, the child received a certain amount, which was to be paid to their parent or guardian to be held for the benefit of the child if the child was under 18.</li></ol> It was held that the proportion of the interest income earned that would be 'excepted trust income' would be determined with reference to how much of the original amount invested into the bank account was sourced from the deceased estate, as compared to the amount gift from non-estate sources. <br /><br />As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the Cure song 'Bare’. <br /><br />Listen here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/NQ2QOEWKA0E" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-42141116708522827462023-08-29T07:00:00.014+10:002023-08-29T07:00:00.149+10:00Get Up** to speed: companies acting as trustees of wills<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgaYORlp2JSta3WpKMZCxNx4roRp3r6nZBi7ARVFIvhTCNOtlApE1Bswnz98WO70Qe4y3U-hmg59zc4-ruIVhimpn7QE04VrnhVkjwnRcElJr-HkDVZP8KO7TLO3dKMlqJbgq0aoo3vY-u8aREQ4oHJzxzKsqTp8etqrGyX1uV4_S5ms4-EYiPzlxl0/s560/i29.8.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Get Up** to speed: companies acting as trustees of wills by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgaYORlp2JSta3WpKMZCxNx4roRp3r6nZBi7ARVFIvhTCNOtlApE1Bswnz98WO70Qe4y3U-hmg59zc4-ruIVhimpn7QE04VrnhVkjwnRcElJr-HkDVZP8KO7TLO3dKMlqJbgq0aoo3vY-u8aREQ4oHJzxzKsqTp8etqrGyX1uV4_S5ms4-EYiPzlxl0/w320-h180/i29.8.2023.jpg" title="View Legal blog - Get Up** to speed: companies acting as trustees of wills by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>One issue that comes up regularly is whether a company can act as an executor and trustee of a will. <br /><br />While there are a number of issues that need to be taken into account, broadly the position is as follows: <br /><ol style="text-align: left;"><li>Individuals must apply for probate of a will, unless an exempted entity (eg the Public Trustee, Perpetual, ANZ Trustees or NAB Trustees etc) is appointed; </li><li>There are no such prohibitions at law in relation to who may act as trustee of a testamentary trust;</li><li>We regularly assist in setting up estate plans with a private company acting as the trustee of a testamentary trust; and</li><li>There are a range of issues that best practice suggests should be taken into account however – we often for example see the failure to take into account the rules under the Corporations Act prohibiting share self ownership, addressed in two previous posts.</li></ol> As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the REM song ‘Get up’. <br /><br />View here:<div> <br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/rPIEBohSojI" width="320"></iframe></center></div>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-60965576395546579612023-08-22T07:00:00.017+10:002023-08-22T07:00:00.157+10:00Trust closedowns**, or vesting (as the case may be)<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgIRBiQpVTt3jdfcJ0LX-pQwfHGIlof8zOkXXpcuDGYlvjPnMGv3bqCZgLST57p0XfwKp16X3_7frCvbwtf7Ztqr2faN5VdVJ2KbfDDEKmzhzAW62n2vGyi897dTPuNSoTiDOQc3JgjnmAjMIQHaqJ9iVxA10Y-U42DgdXjp4IYY-yGHRgq4F9BQQ7P/s560/h22.8.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Trust closedowns**, or vesting (as the case may be) by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgIRBiQpVTt3jdfcJ0LX-pQwfHGIlof8zOkXXpcuDGYlvjPnMGv3bqCZgLST57p0XfwKp16X3_7frCvbwtf7Ztqr2faN5VdVJ2KbfDDEKmzhzAW62n2vGyi897dTPuNSoTiDOQc3JgjnmAjMIQHaqJ9iVxA10Y-U42DgdXjp4IYY-yGHRgq4F9BQQ7P/w320-h180/h22.8.2023.jpg" title="View Legal blog - Trust closedowns**, or vesting (as the case may be) by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>Following on from last week's post, in the case of winding up the trust due to a lost trust deed, some of the considerations a trustee should generally take into account include:<br /><ol style="text-align: left;" type="a"><li>should the trust property be sold with the net proceeds of sale then distributed to the beneficiaries? </li><li>what level of certainty does the trustee have that they have identified all potential beneficiaries and adequately discharged their obligations to all such beneficiaries?</li><li>should assets be transferred to beneficiaries as they are (that is as an 'in specie' distribution)?</li><li>what are the revenue consequences (particularly tax and stamp duty) of each distribution alternative?</li><li>have all loan accounts and unpaid present entitlements with beneficiaries been satisfied (if known)?</li><li>which beneficiaries will receive the distributions?</li><li>have all legal, accounting, tax and statutory requirements of both the trustee and the trust itself been complied with?</li><li>how will the records (if any) of the trust be stored following vesting?</li><li>will all beneficiaries indemnify the trustee for the actions taken by the trustee in historically administering the trust and for the wind itself?</li></ol>As usual, please contact me if you would like access to any of the content mentioned in this post. <br /><br />** For the trainspotters, the title of today's post is riffed from the Cure song 'Closedown’. <br /><br />View here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/RwoPHodwGNw" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.comtag:blogger.com,1999:blog-201175646222228344.post-21378280257025591092023-08-15T07:00:00.008+10:002023-08-15T07:00:00.142+10:00Lost trust** deeds and trust vesting<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgQspN3KEeuzGGOhmotUaAbbZOiCGexseZYpNaqsTzVrhjxcUJ69St1Iwyg1Y7Fw_uBuoo8N-LUKDnofFAF3IYW3bO-clRJOmC2kKtRMj_P2nXz-vfCXmW3AVD4aWgqMmBpGK3KwU-bsDlJ6mSq9nlycF6xB3Jb6j238v6aJ1Bb7y1Lwqs5Osic9HH2/s560/g15.8.2023.jpg" style="margin-left: 1em; margin-right: 1em;"><img alt="View Legal blog - Lost trust** deeds and trust vesting by Matthew Burgess" border="0" data-original-height="315" data-original-width="560" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgQspN3KEeuzGGOhmotUaAbbZOiCGexseZYpNaqsTzVrhjxcUJ69St1Iwyg1Y7Fw_uBuoo8N-LUKDnofFAF3IYW3bO-clRJOmC2kKtRMj_P2nXz-vfCXmW3AVD4aWgqMmBpGK3KwU-bsDlJ6mSq9nlycF6xB3Jb6j238v6aJ1Bb7y1Lwqs5Osic9HH2/w320-h180/g15.8.2023.jpg" title="View Legal blog - Lost trust** deeds and trust vesting by Matthew Burgess" width="320" /></a></div><div style="text-align: center;"><br /></div>If a trust deed cannot be found, commercially it can often be the case that the most responsible approach is for the trustee to wind up the trust. Indeed, there may be disgruntled beneficiaries or third parties that essentially force a trustee to adopt this course. <br /><br />Any vesting of a trust is likely to trigger a range of revenue consequences, particularly taxation and stamp duty. <br /><br />These revenue consequences normally arise where a positive determination is made by the trustee to vest a trust, the trustee will usually resolve to make one or more beneficiaries absolutely entitled to the assets (or specific assets) of the trust. <br /><br />While not intended to be an exhaustive list, the revenue related ramifications of a trust vesting can include:<br /><ol style="text-align: left;" type="a"><li>capital gains tax being payable on the increase in the value of any assets being transferred since the date they were acquired;</li><li>income tax being payable on non-capital assets, such as plant and equipment and trading stock;</li><li>stamp duty being payable on the transfer of the assets, to the extent they comprise dutiable property in the relevant jurisdiction;</li><li>additional tax, stamp duty and commercial costs being incurred to subsequently transfer the assets out of the name of the recipient beneficiary (if they want the assets then re-routed to a trust environment);</li><li>asset protection exposure for the beneficiary receiving the assets in the event they subsequently commit an act of bankruptcy;</li><li>considering the impact of the rule against perpetuities (which effectively prevents a distribution to another trust if this causes the assets to remain within a trust environment for more than 80 years); and</li><li>where an individual receives the assets, the need to update their estate plan to reflect the additional assets owned in their personal name.</li></ol>If the vesting of a trust is being anticipated by the parties, many of the consequences above can be adequately managed through appropriate planning. <br /><br />** For the trainspotters, the title of today's post is riffed from the Cure song 'Trust’. <br /><br />View here: <br /><br /><center><iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="" frameborder="0" height="180" src="https://www.youtube.com/embed/iXNBF6yPkas" width="320"></iframe></center>View Legalhttp://www.blogger.com/profile/11575892510214623456noreply@blogger.com