Impact of Family Dynamics on the Estate Plan – 5 program on demand webinar series

Program 1: Paying It Forward: Loan Management Strategies in Estate Planning

Inter-generational loans from the bank of mum and dad are now a common feature as a result of the increasing costs of housing, education and life in general. This session will look at the implications of family loans on estate planning and strategies for accounting for loans through the estate plan, including:

• Loan or gift? Ascertaining intentions on both sides
• Loan documentation essentials pre and post the event
• Protective strategies for lenders including taking security, charging interest, requiring regular repayments and other conditions
• Tax consequences of receiving interest payments including impact on pensions
• Updating wills and other instruments to factor in loan arrangements and future intentions – what should be included?
• Tips for drafting equalisation clauses and other loan management clauses
• Managing loan obligations in the event of the death of the recipient
• Dispute resolution strategies for family fallout associated with loans and agreement non-compliance

Program 2: Heading the Outlaws Off at the Pass in Estate Planning

Not all relationships last the distance, and parents are increasingly concerned about protecting their adult children’s potential share of that wealth from a former partner following a relationship breakdown. This session provides a guide to practitioners on estate planning mechanisms for quarantining assets from family court proceedings, including:

• What does the FCFCOA look for in assessing assets available for property claims?
• How effective are family trusts in protecting property from third party claims?
• Strategies for drafting trust deeds and managing distributions to fend of former partner claims
• Structuring testamentary trusts for asset protection
• Can a Binding Financial Agreement effectively prevent claims against trust assets and wider family property?
• Cases including Rigby Kingston (No 4) [2021] FamCA 501

Program 3: Power Without Glory: Conflicts of Interest and Risk in Powers of Attorney

In theory, powers of attorney provide a useful and important means for decision-making when the appointor is unable to act. However, the issues that can arise when giving a family member this power are significant, and the courts have been very active in dealing with cases of attorney’s acting badly. This session provides practitioners with a guide to the perils and pitfalls of powers of attorney appointment and decision-making, including:

• What limitations and conditions, if any, should be imposed on attorneys? How can conflicts of interest be avoided?
• Are attorney’s bound to act in accordance with an appointor’s intentions? Reilly v Reilly [2017] NSWSC 1419
• Can attorneys make gifts and change a will? Olsen v Mentink [2019] NSWCA 1299; Meiners v Gunn [2020] WASC 18; Grant v Grant (No 2) [2020] NSWSC 1288 and other cases
• What role does an attorney have in the superannuation of the appointor member? Tips for drafting specific authority and dealing with super funds: Re Narumon [2019] 2 Qd R 247; Re SB; Ex pare AC [2020] QSC 139
• Who has standing to challenge decisions and/or seek removal of an attorney?
• Strategies for protection of clients and the estate from wrongful decisions of an attorney

Program 4: Border Crossing: Taxing Times for Non-Resident Beneficiaries in the Estate Plan

With so many Australians either living outside the country or having broader overseas family connections, a new frontier has opened up for revenue raising by both the Commonwealth government and the states. This session will provide a deep dive into financial considerations in estate planning for trusts and assets with foreign or non-resident owners and beneficiaries, including:

• An update on relevant federal and State legislation including capital gains tax, stamp duty and land tax liability
• Tests for determining residency
• Strategies for minimising liability in distribution of Australian property to non-resident beneficiaries under a will
• Reviewing and updating trust deeds to manage the rules and minimise impact
• Where to from here? Practical advice for clients

Program 5: Second Spouses, the Family Home and the Estate Plan

Estate planning for second or later spouses comes with significant challenges, particularly when one partner dies, leaving a spouse or family living in the most valuable asset of the deceased’s estate. This session examines how an estate plan can best manage potential conflict between adult children and surviving spouses regarding the family home, including:

• Life interests in the family home:
  • When are they appropriate?
  • Should any limitations or restrictions be placed on a life interest?
  • How can a life interest take ageing and health into account?
• Characteristics of a right to reside
  • What conditions can be attached to a right to reside?
  • When does a right to reside end?
• Who pays for maintenance of the property?
• Navigating the tax consequences of life interests and rights to reside
• What happens if the surviving spouse later goes into aged care?
  • Can the property be used to fund aged care?
• Case studies