Journal articles

Post-death superannuation proceeds trusts: a last resort?

While a post-death superannuation proceeds trust should not be treated as a substitute for proactive estate planning, it can be used for asset protection and tax planning where an effective strategy has not been implemented.

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The Clark decision: Possible consequences for CGT event E4?

This article considers a number of aspects of fixed trusts and unit trusts. Questions have been raised about comments that CGT event E4 should apply only to fixed trusts and, by implication, not unit trusts. This article explores the various issues, including the potential consequences of the decision of the Full Court of the Federal Court in FCT v Clark, and the relevance of ATO pronouncements.

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Fixed trusts and unit trusts: one and the same?

There is some uncertainty about what a fixed trust is for taxation purposes. Following the Federal Court decision in Colonial First State Investments Ltd v FCT in 2011, it seems that, for taxation purposes, very few traditional unit trusts will satisfy the strict definition of a “fixed trust”.

This article considers the specific requirements for a trust qualifying as a fixed trust and the relevance of the fixed trust concept for taxation purposes.

Specifically, this article examines whether fixed trusts and unit trusts are the same, unit trusts and franked dividends, the status of distributions that are not fixed, borrowing by unit trusts, unit trusts as investment vehicles, risks posed by trust loss rules, the tax implications of converting a non-fixed trust into a fixed trust, and the consequences of CGT event E4 for unit trusts.

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Trust assets and estate planning: how has the dust settled after Kennon v Spry?

The High Court decision in Kennon v Spry appears to alter longstanding principles relating to the asset protection advantages of trusts. This article considers the consequences of that decision, discusses the treatment of trust assets in a relationship breakdown and the distinction between assets forming part of the pool of property or being treated as a financial resource, examines the application of these principles in recent decisions, and offers some practical recommendations.

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I am delivering a session about ‘Planning for Vulnerable Beneficiaries’ at the Legalwise 3rd Annual Business Succession and Estate Planning Conference on 23 February 2018

I am delivering a session about ‘Integrating Super into Estate Planning’ at the Legalwise 4th Annual Wills and Estates Conference on 14 March 2018


Trust Deeds and Drafting Quirks – Avoiding Costly Mistakes for Television Education Network

Proper drafting of a trust deed is crucial to ensure your clients are adequately protected and do not find themselves having to pay excessive tax.  And older deeds contain some provisions which can trap you.  This practical session looks at some of the provisions of trust deeds which can lead to unusual tax consequences.

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Special Issues with Testamentary Trusts: Post Death Trusts and Superannuation Proceeds Trusts for Television Education Network

Testamentary trusts are central to estate planning today.  A thorough knowledge of how they work, how they can be used and how they are taxed is therefore essential.

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Drafting Testamentary Trusts in a Tax Effective Manner

Testamentary trusts can be particularly useful from a tax perspective. However, you need to get the drafting right, or risk losing the tax benefits. This practical session looks at how to ensure your testamentary trusts are drafted in the most tax-effective way, with a focus on the following:

  • Defining the beneficiaries
  • The right to vary
  • The right to vest
  • Income clauses – trust income, net income, trustee’s choice, default
  • Trustee power clauses
  • Appropriate streaming provisions
    • capital gains
    • franked dividends
    • other income classes

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I have been very fortunate to co-author some books with my colleagues at View Legal.

Click here to view the View Legal books