Ways to contest a will

At least anecdotally, litigation in relation to deceased estates is a growth area of the law.

There are strict rules that relate to the time period following death within which an estate can be challenged.

The easy 'rule of thumb' is that litigation should be commenced within 6 months of the date of death and generally it is impossible for proceedings to commence more than 12 months following the date of death.

The five main mechanisms by which a will may be challenged are:

1. lack of testamentary capacity (i.e. the will maker did not understand the nature and effect of the document they were signing); 
2. contractual obligations (i.e. it can be shown that the will maker entered into an arrangement that overrides the provisions of their last will); 
3. a later, inconsistent, testamentary document (i.e. despite a will receiving probate, a later document is discovered that is inconsistent with what was otherwise understood to be the final will); 
4. undue influence (i.e. the will maker signed a document that they were essentially forced into or misled about its contents); 
5. family provision application (i.e. a person who is within a defined category of relationship with the will maker challenges the provisions of the will on the basis that the will maker failed to make adequate provision for the person’s proper maintenance and support). 

Future posts will explore each of the above concepts.

Image credit: Brian Turner cc

Superannuation proceeds trusts: Tricks and traps

For those that do not otherwise have access to the Weekly Tax Bulletin, the further article from earlier this month by fellow View Legal Director Patrick Ellwood and me is extracted below.  It provides a more technical analysis of the various issues surrounding superannuation proceeds trusts, building on the discussion in recent posts.

A superannuation proceeds trust (SPT) is a trust established solely to receive superannuation proceeds on the death of a fund member.  A SPT can be established by a will or by deed after the death of an individual, although establishing the structure post death can be problematic and is outside the scope of this article.

The ITAA 1997 provides that a superannuation death benefit, paid to a death benefit dependant as a lump sum, is not assessable income.  A death benefit dependant (defined under s 302-195 of the ITAA 1997) is a:

• spouse or former spouse of the deceased;

• child, aged below 18, of the deceased;

• person with whom the deceased had an "interdependency relationship", as defined by s 302-200 of the ITAA 1997; or

• person financially dependent on the deceased just before they died.

Payments to the estate

Where there are death benefit dependants under a deceased estate who are potential recipients of superannuation benefits, it is often an appropriate estate planning strategy to allow for a separate SPT under the will in addition to any testamentary trust (TT), so that a tax-free distribution of the superannuation proceeds can be achieved via a protected structure.  Other estate assets can be distributed to a TT that has beneficiaries who are not death benefit dependants.

When the superannuation proceeds are paid to a SPT, the legal personal representative (LPR) is taxed in accordance with how the person or persons intended to benefit from the estate would be taxed were they to have received the payments directly.  That is, ATO will generally adopt a "look through" approach as if the death benefit had been paid directly to the recipient.

To ensure that any receipt of superannuation proceeds is tax-free, the LPR should ensure that, at least at the time of receipt of the superannuation proceeds by the SPT, the only capital beneficiaries of the SPT are those who meet the definition of "death benefit dependant" under s 302-195 of the ITAA 1997.

In practical terms, this means that where there is more than one death benefit dependant, the terms of the SPT should provide that they receive the trust capital in specified shares on vesting.

In particular, ATO Interpretative Decision 2001/751 (which has since been withdrawn on the basis that its view has been subsumed into s 302-10 of the ITAA 1997) confirms that it appears to be the clear intention of the legislation that the fact that a payment is made to a trustee, rather than directly to the dependant, should not obscure the fact that the payment is ultimately for the benefit of the dependant.

In the facts considered in ATO ID 2001/751, the death benefit dependant was the sole beneficiary of the trust and, therefore, absolutely entitled to the income and capital of the trust.

Income beneficiaries of a SPT

The requirement that death benefit dependants receive the capital on the ending of the trust is also driven by the requirements of s 102AG(2) of the ITAA 1936, which sets out the basis on which trust property must be regulated when the trust ends, in order to access the excepted trust income provisions.  The excepted trust income provisions effectively allow infant beneficiaries of income distributions to be taxed as adults.

There is limited guidance about whether the ATO will require all the income beneficiaries of a SPT to be death benefit dependants.

The conservative position would be to limit the income beneficiaries of the SPT to death benefit dependants only.  In particular, the guidance available in relation to whether tax will be payable on receipt of the superannuation proceeds under s 302-10 of the ITAA 1997 indicates that the income and capital beneficiaries should be limited to death benefit dependants.

It is arguable however, based on the ATO's comments in Taxation Ruling TR 98/4, that a SPT can include a broad range of discretionary income beneficiaries.  While TR 98/4 sets out the ATO's view in relation to child maintenance trusts (see 2015 WTB 11 [287]), it can by analogy be argued that the comments apply to other similar types of trusts (including SPTs).

Furthermore, in practical terms, it appears that the ATO only tests the range of potential beneficiaries of the SPT at the date at which the superannuation proceeds are received by the SPT (for example, see private ruling authorisation number 1011741138466). 

Therefore, even if a trustee takes the conservative approach, that is, to limit the range of potential income beneficiaries to death benefit dependants, following receipt of the proceeds, it may be possible for the range of beneficiaries to be expanded to include non-death benefit dependants.

Below is a diagram giving an example of making distributions under a will to a TT and a SPT.

Provisions of a will

For completeness, as superannuation proceeds do not automatically form part of the estate of the deceased member, it may be necessary to ensure that appropriate nominations are made by the member to direct that the superannuation death benefits are paid to the LPR for distribution under the will, and if appropriate, to any SPT established.

Assuming proceeds are paid under a will, the LPR should have the power to ensure that the range of potential beneficiaries can be limited to persons: 

• within the provisions of s 295-485(1)(a) of the ITAA 1997; and
• who satisfy the definition of "death benefits dependant" under s 302-195 of the ITAA 1997.

The main reason both these provisions should be mentioned is due to the requirement under s 295-485(4) that regard needs to be had to the extent to which a death benefit dependant can reasonably be expected to benefit from the estate.

In particular, s 295-485 of the ITAA 1997 gives superannuation funds the ability to claim a tax deduction based on an increased amount of superannuation lump sum death benefit paid under the "anti-detriment" rules, with reference to the tax paid on contributions.

Conclusion

In many respects, the ability to utilise a SPT under a will incorporating a TT is a simple, yet powerful, strategy that practically is useful in a large range of circumstances.

There are however some fundamental threshold issues that need to be addressed to ensure the expected income tax concessions can be validly accessed.  Furthermore, given the significant number of estate planning related issues aside from tax that are potentially relevant, it is critical that a methodical approach is adopted.

Image credit: Martin Howard cc

View Legal and superannuation proceeds trusts

Last week’s post explained the broad requirements and main benefits of a Superannuation Proceeds Trust (SPT) established under a will. This week’s post focuses on how View Legal’s testamentary trust (TT) wills deal with any superannuation benefits that are paid to a will maker's estate.

Generally, the range of potential beneficiaries listed under a TT are wider than dependants for tax purposes. The way in which View Legal crafts its TTs however gives the trustee complete discretion about which of the beneficiaries may receive any superannuation benefits available for distribution.

In particular, the terms of the will allow the trustee to essentially establish a 'sub trust' of the TT for receipt of the superannuation proceeds – with the only beneficiaries being those who satisfy the definition of a tax dependant.

In this way, the various benefits of having a SPT, as outlined in last week's post, can be achieved.

If the trustee chooses to utilise a SPT, an example of how the estate assets could flow is as follows:

Image credit: Adrian Ruiz cc

Notional estates

Laws in each state of Australia allow a family member or certain other dependants to challenge a deceased's will.  Such a claim is generally known as ether a family provision application or a testator's family maintenance (TFM) claim.  Whether a TFM claim is successful depends upon a range of matters – regardless of the outcome however, TFMs can be costly and emotionally debilitating for all parties involved.

Historically in all Australian states, a TFM claim could only relate to property that was owned by the deceased on the date of their death, putting certain property – such as trust assets or those owned by a spouse - outside the reach of a TFM claim.

In 2005, NSW introduced 'notional estate' provisions, which essentially enable a court to treat certain property that is not legally part of a deceased estate, as being deemed to be included and thereby open to attack by a TFM.  These provisions apply to NSW domiciled persons and any property located within NSW. 

For property to be part of a notional estate, ‘a relevant property transaction’ must have occurred, which in broad terms requires a positive act or omission that results in property being owned by someone other than the deceased. The offending transaction must have taken place within certain specified times before the date of death of the will maker.

All Australian states have been considering adopting similar notional estate provisions to NSW. The only other state to announce their likely approach has been Victoria.  In October 2013, the Victorian Law Reform Commission (VLRC) released its final report on Victoria's succession laws, and recommended that the NSW notional estate provisions should not be adopted in Victoria.

In September 2019 the equivalent body in Tasmania also rejected implementation of a notional estate regime in that state, unless and until there are uniform national rules introduced

This said, even otherwise where a state’s succession laws do not include notional estate provisions, there may still be means to attack assets not otherwise forming part of a deceased’s estate, including because of poor planning or due to sham, contrived or artificial transactions.

Until next week.

Image credit: thinkpanama cc