Choosing an executor is one of the most fundamental tasks associated with making a will. Getting the choice right can mean the difference between a smooth administration on one hand and a tardy administration with unexpected delays and costs on the other hand.
A testamentary discretionary trust is simply a discretionary trust established by a will. It is also sometimes called a protective trust, or a family trust. However, although the term ‘family trust’ is often used in a general sense to mean testamentary discretionary trusts which provide benefits for the family of a testator, a ‘family trust’ is also a specific vehicle for taxation purposes, whether created by a will, or inter vivos.
Homemade wills and ‘will kits’ appear to be uncomplicated and affordable alternatives to seeing a lawyer, but beware; they can end up being more disastrous than you might think.
The principle of ademption provides that where a gift left to a person under a will is sold before a testator’s death, the gift is considered ‘addeemed’.
You may not be aware that spouses are not the only parties who can make a claim in property settlement proceedings. Other parties who have made contributions to the marital assets or loaned monies can also make a claim seeking a payment from the property pool.
Taxation liabilities are a part of the debts which are taken in to account in identifying the net property pool available for distribution between spouses in a property settlement after separation/divorce. A recent High Court decision has recognised the judicial power to transfer a debt owed to the Australian Taxation Office (ATO), from one spouse to another at property settlement.
In the recent decision of Harris & Dewell  FamCAFC 94 the wife sought an appeal to have a unit trust (“the E Unit Trust”) included as part of the property pool available for distribution between herself and her husband at the settlement of property pursuant to their separation.
The Full Court of the Family Court recently handed down an interesting decision in Elford v Elford  Fam CAFC relating to the division of lottery winnings in a property settlement.
There is a conventional view that property held in a trust is ‘untouchable’ and cannot be the subject of division between separating spouses for the purpose of a property settlement at the end of their relationship. This may well be so in circumstances where the Trust is not ‘the alter ego’ (a second self or substitute) of one of the spouses and not subject to the control or influence of a spouse.