Using discretionary trusts to protect inheritances

As set out in earlier posts, and with thanks to the Television Education Network, today’s post addresses the issue of ‘Using discretionary trusts to protect inheritances’ at the following link - https://youtu.be/lkkevmdo4MU

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

Historically, the reality has been that no matter if it’s a normal family trust or some form of testamentary trust, there's been a general acceptance that the Family Court could attack the assets of that trust in particular circumstances.

However, if it was structured appropriately, and care was taken in terms of how the trust structure was setup, then the assets of a trust would generally be quarantined.  The concern in recent times has been the decision of Spry, which received a lot of media attention. 

That decision seemed to create the impression, on the face of it, that no matter what form of structure was setup - family trust or testamentary trust - and no matter how that was crafted in terms of the control structure of the arrangement, the assets of the trust would always be completely exposed. So, obviously a decision that created a radical change in terms of the way people approach setting up trust structures.

Until next week.

When will an inheritance be at risk?

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

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

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

Inheritance is a classic example, because in order for the court to make a decision that they're not taken into account, it really does come back, and this will often be used by the lawyers, to the two word answer - 'it depends', because it really does depend on the underlying factual matrix.

 

If people are particularly concerned about trying to exclude inheritances, the types of things that the courts will normally gravitate towards are things like ensuring that the assets pass as late as possible in terms of when the relationship has broken down, and ideally to the extent this can ever be achieved, that the assets don't pass until after the relationship has ended. 

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

Until next week.