Estate and Wealth Planning

Successful businesses grow in value and that is what we all aim to do.. Often the simple structures used by business owners to achieve early success can leave the valuable assets of the business exposed to creditors and litigation. Many clients are seeking advice on how to separate the business risk from the business assets by building internal firewalls and quarantining key assets. This has two-fold benefits – minimising the fallout of adverse litigation and also discouraging frivolous claims.

Recent changes to tax and revenue law have greatly increased the available tools for separating risk from assets, by splitting and cloning trusts and other business structures. This can greatly assist in the costs of business restructuring.

MBA Lawyers can assist your business by analysing your current structure from the point of view of risk, and providing and explaining the range of options available to minimise this risk in a commercially viable manner.

What is your business worth? Have you considered what would result if you or a co-owner of your business died or was unable to continue in the business? What happens if there is a partnership or shareholder dispute? What assets would be lost in the event of bankruptcy or divorce?

Unfortunately death is inevitable. You can however provide for your family and the generations to come by ensuring the best estate planning structure is in place for those needs. Ensuring that your beneficiaries receive the best asset protected and tax friendly inheritance has obvious advantages to ensure that your legacy continues for as long as possible down through your generations.

MBA Lawyers thrive on the challenges that this specialised field creates. Our team holds accredited memberships with the Society of Trust and Estate Practitioners known as STEP.

We can provide for your estate planning requirements by structuring:-

  • Testamentary trusts
  • Capital protected trusts where a beneficiary receives the income but not the capital of the trust.
  • Family Boards and Constitutions
  • Master Trusts
  • Trust splitting and cloning
  • Special disability trusts

Wills

In short, a will prepared by a solicitor is the best way to ensure your estate is divided according to your wishes rather than the fallback statutory rules of intestacy discussed below. Home-made wills can result in the executor of your estate applying to the Supreme Court to determine your true intentions at the time of making of your will. Your estate would be reduced by legal costs. In a worst-case scenario, a will prepared incorrectly by yourself would be invalid leaving you with no will and having died intestate.

What information do you need to start preparing my will?

Basically, the starting point is to list your assets and your intended beneficiaries i.e. the people you wish to inherit your estate. When preparing your will we generally ask further questions to ascertain how your affairs are structured. Depending on the complexity of your financial affairs, we may recommend you seek input from a financial adviser or your accountant to ensure your affairs are managed tax-effectively. A useful starting point for us to prepare your will is for you to complete our Wills Questionnaire.

Click Here – to fill out our Will instruction checklist/questionnaire.

Why should I have a will?

If there is not a valid will when you die (i.e. you die intestate), there are statutory rules as to who is entitled to inherit your estate. If you have a partner and children and they survive you, the first $150,000 of your estate will go to your partner and the remainder of the estate will be divided in accordance with the Succession Act and split between your partner and children (depending on how many survive you).

Without a valid will in place however your estate may not be quickly wrapped up and your dependants may be left waiting whilst an application is made to the Supreme Court for grant of Letters of Administration.

If you die intestate with no children and leaving no partner, the statutory rules of intestacy set out the order of distribution of your estate to your relatives or distant relatives. This means relatives with whom you may have had no real connection during your lifetime stand a real chance of inheriting from your estate, rather than close friends.

Also a dependent or family member who believes they did not inherit adequate provision for proper maintenance and support may make a claim under a Family Provision Application to receive a bigger share of your estate.  In the worst case, if you do not have any surviving family members then your estate is deemed bona vacantia and the Crown is entitled to it.

The best way to limit the possibility of disputes arising between family members about your estate is to have a solicitor prepare your will.

The stress caused by you dying intestate would be even more acute if you are a sole director/ shareholder of a company. Your company would be unable to trade whilst there is no director and it could take some months before the Supreme Court grants letters of administration for someone else to manage the estate. In the meantime, staff and suppliers may not be paid and the value of the company will be less than if its trading was uninterrupted.

It can also seriously complicate your company’s affairs and inconvenience your business associates to be left dealing with strangers unexpectedly becoming shareholders in your company when you die.

Making a valid will is the easiest and most sensible way of ensuring your assets are distributed according to your wishes and minimising potential inconvenience to your business associates.

Estate Litigation

MBA Lawyers has the knowledge and expertise in all areas of estate litigation including contested wills and family provision claims.

It is possible for a Will to be challenged if there is sufficient evidence to show that, at the time of making his or her Will, the testator did not have the requisite mental capacity to understand the nature and effect of making the Will. For example, if it can be proved that a person was suffering from advanced dementia at the time he or she made a Will and did not have a full or proper understanding of what they were doing then a challenge may be brought. Likewise, a Will may be challenged if there is sufficient evidence of undue influence or pressure having been brought to bear on a testator in making his or her Will. For example, if it can be proved that a testator was threatened or intimidated into making a gift to a certain person in the Will then that gift may be challenged. Also if a health care professional has been a beneficiary under the Will, this may indicate undue influence.

A family provision claim may be brought against a deceased estate if an eligible person was either left out of a Will entirely, or if an eligible person was not adequately provided for in a Will. For example, if a dependent child of a deceased person was left out of a Will entirely and received nothing from the estate then a family provision claim may be made. There are, of course, many factors that are relevant and need to be taken into consideration in any family provision claim, including the character and conduct of the claimant.

MBA Lawyers can assist you in relation to your estate litigation matter or enquiry. Our lawyers are experienced in bringing claims on behalf of people who are challenging Wills or making family provision claims as well as acting on behalf of Executors and Administrators who are defending claims that are being made to challenge a Will or defending family provision claims that are being made against an Estate. We have built excellent relationships with some of the leading barristers in this area and we are well-equipped to assist you in relation to this specialised area of the law.

We provide estate litigation service for the following matters:

  • Contested estates
  • Testator’s maintenance and family provision claims
  • Testamentary capacity claims
  • Undue influence Guardianship Tribunal work and Protected Estates Removal of executors.
Key People
Matt Windle BBus. LLB.
Partner
E: matthew@mba-lawyers.com.au