Last week’s post considered a number of different alternatives in relation to body disposal following death.
As is well known, it is possible to donate organs for medical purposes, which in Australia is via an opt in process and requires registration on the Australians Organ Donor Register.
Renowned behavioural economist Dan Ariely (among others) has commented on the level of organ donation in jurisdictions where there is an opt out approach adopted – in these jurisdictions, the level of uptake is astronomically higher.
It is important to note that generally if a person wishes to make their organs or body available for medical research, there are specific additional steps that must be taken, prior to death, to ensure that the necessary consents are provided.
As usual, please make contact if you would like access to any of the content mentioned in this post.
** For the trainspotters, the title of today's post is riffed from the Wonder Stuff song ‘Donation’.
Last week’s post mentioned Keith Richards and it reminded me of one death-related story that Keith Richards is famous (or perhaps more accurately infamous) for. In particular, the way that Keith Richards (allegedly) disposed of his father’s ashes, as profiled in more detail below.
Certainly, one aspect of estate planning that often receives less attention than many other areas is body disposal.
Ideally, a will maker’s wishes in relation to body disposal should be communicated to immediate family members or the executor of the estate.
A memorandum of directions, letter of wishes or similar style document is often the best mechanism in this regard.
At least in western culture, the three most traditional body disposal approaches are:
burial;
cremation;
burial at sea.
Some alternative approaches include the following, which can all be accessed via Dr Google:
Diamonds
Mummification
Cryogenically frozen
Coral reefs
Composting
Deluxe cardboard box
Vinyl records
Firecrackers
Snorting (ie the Keith Richards play; note - the mixing of ashes with illicit substances is generally regarded as optional)
Smoking – as a variation on the snorting idea, friends of rap singer Tupac allegedly mixed his ashes with marijuana and smoked them
An hour glass
Glass orb
Snow Globes
Space flight (as made famous by James Doohan, the actor who played Scotty in Star Trek, whose ashes were sent into space on a Elon Musk SpaceX rocket launch)
Shot out of a cannon – Hunter S. Thompson style, perhaps helping deliver on his famous comment that:
‘Life should not be a journey to the grave with the intention of arriving safely in a pretty and well preserved body, but rather to skid in broadside in a cloud of smoke, thoroughly used up, totally worn out, and loudly proclaiming "Wow! What a Ride!”’
** For the trainspotters, the title of today's post is riffed from the Rolling Stones song 'Respectable'.
The saga involving swimmer Grant Hackett suing two law firms for negligence is a high profile reminder of the difficulties in relation to 'pre-nups'.
Broadly the Hackett matter centred on allegations that the relevant law firms failed to properly advise him to create a binding financial agreement.
In particular, Hackett argued that the original agreement entered into before marriage failed to comply with the strict legal requirements under the Family Law Act. When the agreement was later updated after the birth of the couple's twin children the alleged difficulties with the agreement were not remedied.
In many respects the issues here are analogous to the relatively well known 'pole dancer' case of Wallace v Stelzer [2014] HCATrans 135 - so named because the husband met the wife at what was described as 'an adult entertainment venue' where the wife was working as a dancer. As usual, if you would like copies of the relevant decisions please email me.
At the heart of the pole dancer case was the husband's desire to avoid the terms of the binding financial agreement that saw him liable to pay $3million dollars to his former wife when their marriage ended after only 18 months.
Some of the arguments raised included that the lawyers failed to discharge their duty to properly explain the terms of the agreement - an allegation that would have seen the lawyers potentially liable in negligence if it had been held to be correct.
It was also argued that the agreement was void in relation to some technical aspects required to be complied with under the Family Law Act and that attempted legislative fixes to the rules were also invalid, in part because the changes purported to be retrospective.
While it was ultimately held that the agreement was effective and the legislative changes were valid the extent of the litigation has seen many law firms, even those that specialise solely in family law, choose to no longer prepare binding financial agreements.
As usual, please make contact if you would like access to any of the content mentioned in this post.
** For the trainspotters, the title of today's post is riffed from the T-Rex song 'Cosmic Dancer'.
Contribution reserving has for many years been largely viewed as a strategy that in most instances will be too aggressive to comply with the approach the Tax Office is comfortable with in this space.
This said, the Tax Office Determination (TD) 2013/22 does appear to confirm that, subject to the governing rules of an SMSF trust deed, some basic contribution reserving can occur.
In particular, assuming the trust deed and the fund’s reserving strategy, are complied with, then TD 2013/22 supports an approach along the following lines:
a fund member can make a contribution to a SMSF that is double their concessional contribution cap in the one financial year;
half of the contribution can then be applied to, for example, an 'unallocated contribution account'. Arguably, an unallocated contribution account is analogous to a reserve account;
the other half would then be counted towards the relevant member's concessional contribution cap for the first financial year; and
in the second financial year, the trustees of the fund would resolve to allocate the amount applied to the unallocated contribution account to the relevant member and it would then be applied to that member's concessional contribution cap in the subsequent year - i.e. the year of actual allocation.
As usual, please make contact if you would like access to any of the content mentioned in this post.
** for the trainspotters, the title today is riffed from the Hoodoo Gurus song 'Death Defying'.
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 2025.
Similarly, the social media contributions by both the View and Matthew will also largely take a hiatus until the New Year as from today.
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.
The 2024 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 2025.
Very best wishes for Christmas and the New Year period.
** for the trainspotters, the title today riffed from one of my favourite modern-ish Christmas related tunes, namely ‘How to make gravy’ by Paul Kelly.
Previous posts have considered the impact of separation and divorce of a marriage on estate planning documentation.
As mentioned in last week’s post, the general view has been that analogous situations on the breakdown of a de facto relationship do not have the same consequences.
As last week’s post concluded however, whenever there is a significant change in a personal relationship, best practice dictates that there be an immediate review of all estate planning arrangements.
The case of Blyth v Wilken [2015] WASC 486 is a stark reminder of this principle.
Relevantly, the factual matrix here involved a willmaker who left a final will giving the majority of his estate to his ‘de facto wife’. The relationship between the will maker and his de facto ended after the will was made and around three years before he died. No updated will was prepared.
In deciding that the former de facto wife was not entitled to receive anything under the will, the court essentially applied the same principles that would have been relevant had the couple have been married and subsequently divorced.
In other words, the court decided that the gift was made solely because of the de facto relationship.
Once that relationship ceased, the court determined it would have been the willmaker’s intention that the gift should also fail.
In most respects, the decision here contradicts the generally accepted position and arguably leads to a conclusion that if the willmaker had simply referred to his spouse by her name and had not mentioned ‘de facto wife’, then the gift would have in fact stood.
As usual, please make contact if you would like access to any of the content mentioned in this post.
** For the trainspotters, the title of today's post is riffed from the XTC song ‘Ball and chain’.
Previous posts have highlighted the significant impact a change of relationship status can have on any estate planning arrangements.
The conservative approach is to always update estate planning documentation as soon as it is clear that there is either a new relationship that is evolving towards de facto status or marriage, or a previous relationship that has no real prospect of a reconciliation following an initial separation.
This said, it can be important to understand the broad rules that apply in the event of marriage and divorce on both wills and enduring powers of attorney (EPA).
The following table sets out the broad position, which unfortunately, is inconsistent across each Australian jurisdiction and also as between the situation for wills and EPAs.
The general position is that neither the commencement nor ending of a de facto relationship has any impact on estate planning documentation. This said, some jurisdictions are evolving the rules in this regard as well, for example on the ending of a de facto relationship in Queensland the position is now largely the same as for the ending of a marriage (ie partially revoked).
State
Will – Marriage
Will – Divorce
EPA – Marriage
EPA – Divorce
Victoria
Partially revoked
Partially Revoked
No effect
No effect
New South Wales
Partially revoked
Partially Revoked
No effect
No effect
Queensland
Partially revoked
Partially Revoked
Revoked
Revoked
Tasmania
Partially revoked
Partially Revoked
No effect
Revoked
South Australia
Revoked
Partially Revoked
No Effect
No Effect
West Australia
Revoked
Revoked
No effect
No effect
Northern Territory
Revoked
Partially Revoked
No effect
No Effect
Australian Capital Territory
Revoked
Partially Revoked
Revoked
Revoked
Notes:
On marriage, wills in all jurisdictions are at least partially revoked, unless they are made in contemplation of marriage
In all jurisdictions, following divorce, an ex-spouse is automatically excluded from receiving direct benefits under the will.
Most States and Territories allow a willmaker to make a gifts, following divorce, directly to an ex-spouse where that intention is expressly stated in the will. If this is the case the disposition will still be valid.
Western Australia is the only jurisdiction where all dispositions to ex-spouses following divorce are automatically revoked.
As usual, please make contact if you would like access to any of the content mentioned in this post.
** For the trainspotters, the title of today's post is riffed from the XTC song ‘Life begins at the hop’.
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begins%20(at%20the%20hop)%20by%20Matthew%20Burgess.jpg "View Legal blog - Relationship status changes and estate planning: Life (re)begins (at the hop)** by Matthew Burgess")