PAYG withholding variation for foreign resident capital gains withholding payments – deceased estate and legal personal representatives

On 6 September, 2016 Sladen Legal delivered an event titled Complex estate planning in a complex world.

In it the following issues were examined:

The recent Federal Court decision of Ievers v Superannuation Complaints Tribunal considered the question of whether a de facto relationship had ended for the purpose of determining who should receive a super death benefit.

In May 2016, " Creating Entitlements in Discretionary Trusts " written by Sladen Legal's Amanda Morton was published in the Tax Institute’s Journal, Taxation in Australia.

n Fischer & Ors v Nemeske Pty Ltd & Ors ([2016] HCA 11; [2014] NSWSC 203), the High Court yesterday upheld the decisions of the Supreme Court of New South Wales and Court of Appeal.

The High Court’s decision confirmed that the resolution of a trustee of a discretionary trust to distribute an amount equal to the value of shares owned by the trustee to a beneficiary (Nemes) created a debt payable upon demand enforceable against the trustee by Nemes’ executor upon Nemes’ death.

Blended families are more prone to dispute than is the case with first relationships and face a range of challenges, practically and legally. Superannuation, estate planning and family law disputes can often be avoided with proper planning and strategic decision making.

On 1 September 2015, the Powers of Attorney Act 2014 (The Act) introduced new civil and criminal penalties for misuse of an enduring power of attorney. The new penalties include a fine of up to $91,000 or up to five years imprisonment.

From 1 September 2015, the witnessing requirements for an enduring power of attorney have been significantly tightened.

The signing of an enduring power of attorney by the principal (the person giving the power) must be witnessed by two people. One of these witnesses must be either a person who is authorised to witness affidavits (such as lawyers, judges, members of the police force ranked sergeant or above, parliamentarians or justices of the peace) or a medical practitioner. Previously, it was only a requirement that one of the witnesses needed to be authorised to witness statutory declarations.

A new type of power of attorney is now available, effective 1 September. A person (referred to as the principal) can now appoint a “supportive attorney”.

New powers of attorneys will come into effect in Victoria from 1 September 2015.

Digitally stored information, including records, communications, photographs and other details which are held with various internet-based organisations can be difficult to deal with when the account holder dies. Many organisations are grappling with methods of dealing with the problem or simply ignoring it.

Facebook is giving users more control over their social networking afterlives with a “Legacy Contact” setting. This allows account holders to have their account deleted after they die or alternatively appoint a Legacy Contact to manage the account.

The Victorian government passed the Justice Legislation Amendment (Succession and Surrogacy) Act 2014  on 16 October, prior to going into caretaker mode leading up to the election.

The Act includes significant amendments to the laws governing the contesting of wills.

Since the removal of any relationship requirement between a claimant and a deceased person in 1996, the courts have dealt with a wide range of claims. These claims are not only by spouses and children of the deceased person, but also grandchildren, nephews and nieces, carers and even neighbours.

This paper was presented by Amanda Morton and Rob Jeremiah at the Eighth Annual Estate Planning Conference Television Education Network, held on 20 March, 2014.

The purpose of this paper is to discuss a number of tools which may be used to implement an estate plan and to achieve the client’s objectives.

Given (unfortunately) that disputes are more likely to arise between family members upon the death of a client in a blended family situation, it is most important that proper consideration be given to the client’s estate plan and how to achieve their objectives.