Testamentary Discretionary Trusts

Quite often a client will come to us and say they have heard about a Will that provides for a ‘testamentary discretionary trust’ and they want to know if it is necessary and what it means.  This blog answers the seven main questions we are asked about testamentary discretionary trusts.

1. What is a testamentary discretionary trust?

A testamentary discretionary trust is simply a trust which is established in a Will.  The beneficiaries receive their estate distribution on the terms of a trust rather than in their personal name. 

The trustee has the day-to-day control of the trust.  An independent trustee can be appointed or the Primary Beneficiary can be the trustee of their own trust, either on their own or jointly with another person.  

There are two main benefits:

  • Asset protection
    • A beneficiary does not own the assets in a testamentary trust which means that creditors will generally not be able to access the assets of the trust;
    • An independent trustee can be appointed if the assets are at risk, such as through the beneficiary suffering from a gambling problem or drug dependency;
    • The trust can offer protection from a family law breakdown;
    • The trust can be drafted such that a person is deemed ineligible to act as trustee if they are declared bankrupt;
    • To best safeguard assets, a will-maker might consider appointing two trustees and two appointors.
  • Taxation advantages including:
    • Minor beneficiaries are taxed at normal adult rates on excepted trust income rather than at the penalty rates that usually apply to minors.  Income earned on assets forming part of the trust will generally be ‘excepted trust income’;
    • The trust can be used to stream different categories of income to different beneficiaries;
    • Income can be distributed to beneficiaries whose marginal taxation rate is low;
    • The class of beneficiaries can include tax-exempt entities.

The trustee can remain in place for up to 80 years or earlier if the trustee decides to vest the trust.

2. Do I need to set it up now?

The terms of the trust form part of the Will.  However, the testamentary trust only comes into operation after the testator’s death.  After signing the Will no further steps need to be taken until the testator dies.

3. What are the ongoing costs of the trust?

The trust will need a tax file number and tax returns will need to be lodged each financial year.  There can be associated accounting costs.

4. Is my estate large enough to warrant setting up a trust?

Regardless of the size of the estate, the trust still offers asset protection and tax advantages.  As long as the ongoing costs of the trust are not disproportionate to the benefit and your assets form part of your estate (property held as joint tenants and assets held by a family trust for example for not form part of your estate) the trust can be advantageous.

It is also possible to give beneficiaries (once they have reached the preservation age) the option of whether they take their distribution personally or on the terms of the testamentary discretionary trust.

5. Will the trust make it complicated for my Executors?

The trust does not need to be complicated.  At Perspective Law we take the time during the estate planning process to ensure our clients understand the terms of the trust and that it upholds their wishes.  We also assist beneficiaries of deceased estate and can provide guidance in relation to the setting up of the testamentary trust, including referrals to accountants or financial advisers.

Most of our clients feel at ease after completing their estate plan and knowing their Will reflects their wishes and provides tax advantages and asset protection for their beneficiaries.

6. Is the cost of preparing the Will worth it?

The cost of drafting a Will which includes testamentary discretionary trust is more expensive than the cost of a simple Will.  However, the testamentary trust can result in significant tax savings for your beneficiaries.  The asset protection also makes the Will an investment.  If, for example, estate assets are distributed to a beneficiary in their personal name and they have been declared bankrupt, the assets will vest in the bankruptcy trustee.  This alone makes the Will worthwhile.

7. I already have a family trust – can I just use that?

It is possible to name family trusts as a beneficiary of the estate.  However, assets that pass into a testamentary trust are subject to a much lower tax rate.  Entitlement to concessional rates of tax will generally be limited to income from the transferred assets and not from assets subsequently acquired.  This is different to a testamentary trust where all the income of the trust estate can be taxed concessionally.

Other considerations include:

  • The vesting date of the family trust will be sooner than the possible vesting date of any testamentary trust as the trust does not come into operation until the testator’s death;
  • There can be uncertainty around the control of the family trust at the time of death;
  • Alternatively, the family trust can be an eligible beneficiary of a testamentary trust and distributions can be made to the family trust from the testamentary trust.

To discuss further, call Lauren Nolan now or email us at lauren.nolan@perspectivelaw.com

Property Contracts- Correct Purchaser?

In the Queensland property market, solicitors are often an afterthought when it comes to commencing the sale or purchase of a residential property. Unfortunately, by the time “legal” gets subbed into the game, the agent has already scored straight down the middle with the contract signed sealed and ready to be delivered. The result can often be problematic, particularly if you are dealing with a more complex transaction.

An issue that comes up more often, is having the correct name on the contract.  Often, this is due to a fundamental misunderstanding of the process and the importance of having this decision made prior to signing. The liability for stamp duty attaches to the entity from the time the contract is signed (not when the contract goes unconditional, or when it settles). Particularly for buyers, once the contract is in place, varying the purchasing entity can have adverse implications for stamp duty (read here: doubly duty). Should you find yourself in a situation, during the contract, where you advise that the name on the contract needs to be changed as “it was always meant to be purchased in the trust, but the seller said we needed to sign urgently and the trust wasn’t set up yet”, careful consideration is required.  

The most important thing to do in this situation is to act promptly. Depending on how much time has passed since the matters genesis, and the severity of the change required, you may be able to withdraw from the contract under the cooling off period. This carries the risk of the seller requiring a termination penalty so may not be desirable in all circumstances. The most common course of action however,  while the contract is unconditional, will be to make a request with the other side to enter into a deed of rescission. This secures the property, while the correct contract is drawn up and executed by the (correct) parties. 

The problem with this approach is that it relies strictly on mutual agreement between the parties. In a Sellers’ market, this approach is not always successful. If the seller refuses, and the contract is unconditional, the buyers have no choice but to complete the purchase or risk losing their deposit.

How can this issue be avoided you might ask and I offer three words: Review, Collaboration and Education.

First and foremost contract reviews. This is the most obvious route to success as it allows the solicitor to pick up the omission or error before it becomes a problem.

Collaboration, with agents, clients, the accountant and (the other side to the extent permitted by law) to ensure everyone is engaged once the issue arises. Often dealing directly with the agent at the outset to clarify entity with them, goes a long way towards securing a successful outcome. The agent is the indispensable connector, they are the go between for the buyer and seller and often have a better relationship with both parties. They also have a vested interest in a successful outcome.  Collaboration is also important with client and lawyer. Discussing the issues with the purchaser directly so they understand exactly the stamp duty issues as they arise (and before they become disastrous), can often lead to a more thorough, considered and effective solution.

Finally education. Advising the agent early first and foremost is so important. It is usually an agent who will prepare the contract, so giving clarity to an agent as to stating the correct purchaser is critical and helps a long way in preventing a ‘repeat’.  The value of having a solicitor review the contract prior to signing cannot be understated.

Please contact our office today to speak with Katherine Blood on 07 3839 7555 if you wish to discuss your contract or via Katherine.Blood@Perspectivelaw.com

Recovering Land Tax – Points to Consider for Tenants and Landlords

As land tax can be a significant expense for investment property owners, when considering a lease, it will be of interest for both the potential lessor and the tenant whether the land tax can be recovered from the tenant as an outgoing.

The following chart lists a simplified set of questions and outcomes for landlords and tenants to consider when looking at land tax.

A. Residential or Retail Leases

Tenants in a retail shop lease cannot be required to provide land tax by the landlord. While landlord’s outgoings can be recovered in retail shop leases, clause 7(3) of the Retail Shop Leases Act 1994 (Qld), specifies that land tax cannot be included as a recoverable outgoing.

In residential leases, the Lessor must pay all charges, levies, premiums, rates or taxes for the premises, which includes council rates and land taxes, per clause 163 of the Residential Tenancies and Rooming Accommodating Act 2008 (Qld).

B. Leases that commenced between 1 January 1992 to 30 June 2009.

Commercial leases that commenced during the period between 1 January 1992 and 30 June 2009 cannot recover land tax from the tenants, even if there are provisions in the lease that allows for it.

However, per the decision in Vikpro Pty Ltd v Wyuna Court Pty Ltd [2016] QCA 225 in leases that commenced during this period, with land tax arising on or after 30 June 2010 which has: –

  • already been paid by the tenant, then that amount can be retained by the landlord and the tenant cannot seek to recover the land tax already paid; or
  • been ordered by the court to be payable by the tenant, that order can still be enforced.
  • Leases after 30 June 2009

Since the decision in Vikpro Pty Ltd v Wyuna Court Pty Ltd and a legislative change in 2017, landlords in commercial leases that commence after 30 June 2009 will be able to recover land tax arising from 30 June 2010 onwards, as long as the lease permits it.

Potential tenants seeking to enter into a lease requiring contributions of outgoings, including land tax should ensure that they receive sufficient disclosures on the anticipated costs, including by seeking a land tax clearance search.

If you have any questions about a commercial lease and the recovery of land tax, please call us on (07) 3839 7555.

Common Estate Planning Traps to Avoid

As with most estate administration matters, we see clients that are left with difficult circumstances after their parent has passed away. Sometimes, those clients are survived by step parents, who were married to the deceased parent for only a short duration and had no biological children together.

Common issues that arise during the course of these matters, include: the deceased parent failing to leave a valid Will or failing to execute a valid binding death benefit nomination for payment of their superannuation death benefits. The clients are left to deal with these complicated issues, which can lead to disputes and causing legal and accounting fees to be unnecessarily incurred.

Steps can be taken during your lifetime to ensure that your family is safely provided for on your death. Below is a non-exhaustive list of common estate planning traps to avoid.

  1. Marriage (and civil partnership) revokes a Will

A Will is revoked by the marriage of the testator. If a testator enters into a civil partnership, their Will is also revoked.

However, if the Will contains gifts of property to the spouse of the deceased at the date of death (or other dispositions of property), or appoints the spouse as Executor (or as Trustee, Guardian or any other appointment), then the Will is not revoked to that extent. They may be left with the power to distribute assets to themselves which could be unintended.

To avoid this mistake, consider whether a Will should be made in contemplation of marriage. Generally, the solemnisation of the marriage will not revoke the Will.

  1. Divorce or annulment (or end of a civil partnership or de facto relationship) revokes a Will

If a testator’s marriage ends by divorced or is annulled, and their Will contains dispositions of property to the former spouse, or appointments of the former spouse, then these provisions are revoked.  For example, a gift of real property to a former spouse is revoked and the gift takes effect as if the former spouse had died before the testator.

There are some exceptions. For example, appointments of the former spouse as Trustee of property for minor children of their marriage, will not be revoked.

The effect of termination of a civil partnership or the ending of a de facto relationship on a Will, is the same as those effects for divorce or annulment.  

An important tip is to ensure a Divorce Order is obtained from the Family Court. Otherwise the former spouse is still considered a spouse of the testator.  

  1. Death Benefit Nominations

You can provide the Trustee of a Superannuation Fund with a death benefit nomination (which can be binding or non-binding) for payment of your death benefits. The death benefits can be paid to the legal personal representative (i.e. Executor or Administrator) or a dependant or dependants of the member.

The legislation provides a nomination ceases to have effect three years after the day it was first signed by the member. If the nominations lapses, it may be deemed non-binding and the trustee has discretion to pay the death benefits as it sees fit.

If a member struggles to remember to renew their death benefit nomination, consider rolling the funds into a Self-Managed Superannuation Fund, which enables a member to make a non-lapsing and binding nomination (provided the trust deed expressly allows it). Accounting and tax advice should be obtained to consider whether a Self-Managed Superannuation Fund is suitable for individual circumstances.

  1. Tenants in Common and Joint Tenants

When purchasing real or personal property with one or more persons (or entities), you will need to consider the form of ownership.

An important factor to consider is whether to hold property as “tenants in common” or “joint tenants”. Tenants in common hold their interest in the property separately. Their interest is registered on title as a fraction of ownership.

This means that on the death of one of the tenants, their interest in the property forms part of their estate and is distributed in accordance with their Will.

If property is held as joint tenants, then on the death of a joint tenant, their interest vests automatically in the surviving joint tenant. Their interest will not form part of their estate on death. This is not often discussed during a conveyance and can have devastating effects at the time of death.

Holding property as tenants in common can mean that beneficiaries will need to commit to owning property with another person (or entity), which may be a partnership if it is a commercial or residential investment property.

If the circumstances do not allow for those beneficiaries to receive the cash equivalent of the deceased’s interest in that property, they will end up holding the deceased’s share in the property, proportional to their share of the estate.

If you would like to plan your Will and avoid these and other devastating estate planning traps, please do not hesitate to call Tony Crilly or Elizabeth Ulrick on 07 3839 7555 or email us brisbane@perspectivelaw.com.

If you want 24/7 answers, please go to our website and click on the section “Start your estate planning now”.

If you have an estate to discuss, please click on the link “Start your estate administration now”.

Debts and Statute of Limitations

Ever wanted to know the best way to secure a Loan to your children for purchase of their home?

Make sure that you have a formal Loan Agreement with conditions or a term for repayment and it is not just in writing and repayable on demand.

Have you ever wondered how long you can be chased for a debt or how long you have to recover your unpaid debts?

In most states in Australia, the limitation period for debts is for six (6) years, except in Northern Territory where it is for three (3) years. This means that the creditor can pursue the debt from six (6) years from the date of when:

  1. The debt became due and payable; or
  2. The last date a payment was made towards the debt; or
  3. The date the debtor acknowledged in writing that they owed the debt.

It is imperative that you get the calculations correct, as failure to establish the limitation period, may mean that you will be unable to successfully recover your debt and the debt will become statute-barred.

A statue-barred debt is when the debt becomes older than the limitation period in your State or Territory (being six (6) years in all states in Australia, except in Northern Territory where it is three (3) years). Therefore, a creditor will no longer have legal right of recovery for a statue-barred debt. However, if the debtor acknowledges the debt in writing, or makes any payments towards the debt, then this resets the clock on the six (6) year limitation period.

References:

We recommend a formal Loan Deed and Mortgage registered on title to the property. That way, it is very clear the legal rights of enforcement should the child divorce or die and the property becomes part of a dispute. Call us today on 07 3839 7555 if you would like to discuss this further.

Buying Off the Plan Developments: Buyer Beware

The economy has bounced far better than everyone expected and this has resulted in a surge in property buying. As the economy expands, the more frequent speculative option of buying “off-the-plan” has become . Instead of trawling through open homes to find the diamond in the rough, you might get in on the ground floor  by choosing your property from computer generated plans and images in a new  development. Whilst this can offer a great opportunity, there are some warnings that need be considered. Here are some of our top tips for off the plan purchases!

  1. Builder: The builder (as distinct from the seller) will be the person responsible for the actual bricks and mortar work. Quality between builders can be as stark as black and white so you want to make sure that the builder you are signing up with has a good reputation. Check some of there previous builds. How is there rating on social media? You should give us a call to see if they have any pending litigation against them.
  2. Display Unit: Not all developers use a display unit, but if they do, be sure to do a thorough inspection and take lots of photos! Get a sense of how the layout feels in real life as this is hard to gauge from architectural drawings. Note the size of the rooms, specifications and location of appliances. Even small things are important such as the way the toilet is facing in the bathroom. For small units, this can be critical!
  3. Completion Date: The hardest thing to get used to when buying off the plan is the lead time between putting ink to paper and getting those beautiful new keys (or, more commonly, access codes). I have never met a more optimistic group than the developers of these projects. Take the estimated completion date and double it. “We are hoping for practical completion by March” – assume they mean by Christmas. This is not usually an issue, if you plan accordingly. But whatever you do, don’t give notice to your landlord just yet.
  4. Sunset Date: This is the date under the contract that the project must be completed by (this can give you a time frame for completion from the anticipated completion date to the sunset date). But beware, most contracts contain a provision that allows for the sunset date extension which is at the seller’s discretion. In other states, there are statutory restrictions on the sellers right to terminate under a sunset clause.  In Queensland it is a maximum of 5 years 6 months. This will usually happen where a sunset date is reached and, under a booming property market, the price the Seller received for the contract some years ago is way under the current market value.  Although some protections exist in legislation the contract should be reviewed by a solicitor prior to signing to ensure you will not be stranded come sunset date!
  5. Deposit: It is common that a deposit is paid to secure your interest in the property. We have seen deposits range anywhere from $1,000.00 to 10% of the purchase price. On a 4-million-dollar unit for example, that is a lot of cheddar. It is important, therefore, to ensure that the deposit remains in the Agent or Seller solicitor trust account, and not released to the Seller. Should the contract not proceed, you want the deposit to be readily available for refund.
  6. Disclosure Statement: this is a requirement of the Seller and must contain their names and addresses, identify you as the buyer, identify the unit you are buying and put in writing their claims and promises about your prospective title. It will usually contain a draft strata plan showing the proposed location of your unit (your proposed lot), and its position relative to the rest of the building. It includes expected body corporate adminstration and sinking fund levies. This is useful to consider where you are for the purpose of access to other facilities in the building including any views that you might get and natural light into the building. It is also important to consider, if you have an included car park or storage facility, where your lot is relative to those features. This will not always be available at the time you sign the contract.
  7. Finishes: The contract will contain a schedule of fixtures and finishes. A detailed schedule is important to manage your expectations as to the finished product. Comprehensive review of this document will help avoid arguments and disappointments on completion.
  8. Changes: Contracts are drafted for the benefit of the Seller and usually allow a lot of changes (often without consultation with or fiscal reparations to the Buyer). These can be anything from alteration of the schedule of finishes, altering dimensions of the property, total number of units in the building and location of the lots, address of the property and location or creation of easements. In Queensland however, a change to the initial disclosure statement that will cause material prejudice (think significant disadvantage), you may have a right to terminate  provided you act within the time limits. (30 days after you receive notice of the change or before settlement).  
  9. Defects: Defects need to be notfied  within specific time frames and the contract should provide for a procedure in this regard. Check the contract to ensure you have sufficient time to discover and raise issues (no less than 3 months ideally).
  10. GST: whilst most contracts will quote the price inclusive of GST for residential units, it is important to make sure this is the end of the story. A review of the GST clause in the contract is essential as you do not want to end up with a 10% shortfall come settlement. 
  11. Insurance: In Queensland, we have a statutory building regime that protects new homeowners from defects in building works, or failures to complete the build. However, it is important to note that the cover  will not cover multiple unit dwellings of more than 3 storeys. Body coporate insurance is madatory but searches will reveal the extent of the insurance policy. Teinterior of the ujnit and claims for public liability are up to you as the buyer so make sure you get insurance cover, including all appliances.
  12. Construction: the agent will be a good source of updates during construction, so keep in touch with them throughout the process as they will have an idea if the build is on schedule. They have a vested interest in ensuring your matter reaches settlement!
  13. By-Laws: Most contracts will contain a draft of the building rules (By-laws). Make sure you review these carefully and consider if they will suit your living arrangements, especially in regard to pets.
  14. Stamp Duty: this is payable on top of the purchase price and usually represents a significant contribution to the Buyers costs. This will be due and payable 30 days after the contract becomes unconditional or on settlement whichever is sooner. Usually, off the plan contracts will not become unconditional until either registration of the plan and issue os titles and certification for occupation has occurred. Remember to check with your solicitor prior to signing.
  15. Finance: This is an important (and often overlooked) consideration, especially when your contract may span several years. Whilst pre-approvals are a great indication of your ability to complete at the time of contracting, be warned – they have expiration dates. Most top tier financiers attach a 90-day acceptance period in which to go from formal approval to settlement. After this time, you run the risk of needing to reapply and your circumstances changing. Including a finance clause which is timed based on the registration or final certification date is the safest way to ensure you have the funds to complete or an out if necessary. 

If you are thinking of investing in an “off-the-plan” unit, contact Katherine of our office for a comprehensive review of the contract prior to singing. Email Katherine.Blood@Perspectivelaw.com Knowing your rights and obligations now, can go a long way to saving some headache and heartache in the future.

Queensland Property Contracts – Lockdown Makes No Difference

Picture this: it’s Saturday evening. You are waiting nervously next to your phone with a glass of wine to take the edge off; waiting anxiously, after seeing your dream home at an inspection that morning. Why so serious? You have submitted an intention to make an offer to the Seller and the next call you want is from the agent with your offer, on contract, ready to sign. But before you embark on the road towards the Australian dream, whether for the first time or the fifteenth, it is important to check the wording.  I aim to unpack three of the big clauses that will feature in the favoured contract used by Queensland Agents – The REIQ contract of Sale.

As a golden rule, I’ll start with the Finance Clause or, known in the legal world, as “Clause 3”. This is a heavy hitter. It can help all your dreams come true or could potentially be the subject of your worst nightmare. So what are the basics? In a nutshell, your contract will be subject to finance when all three components of the “finance” section in the contract reference schedule are completed. This is critical. I have seen the disastrous effects of an incomplete finance clause and you do not want to be on the pointy end of that knife. So that seems easy enough. Three blank spaces, three simply entries, right? Wrong! As a buyer (or agent for the buyer) completing this clause, you want to keep the clause general to ensure you don’t unintentionally hitch your wagon to the wrong horse. In the recent case of Hauff & Anor v Miller[1] the contract specified ING as the financier (instead of the more popular entry of financier of “buyer’s choice”). The buyers instead, applied to Rock Building Society, on the presumption that this application would be more successful. When the finance approval had not been received within the time frame stipulated in the contract, the buyers commenced steps to terminate the contract. Without getting into the finer details, the key takeaway was that as the Buyers had not applied to ING as noted on the contract, the court considered that all reasonable steps were not taken, and therefore their termination was not lawful.

This leads us to the next point. Clause 3.1 provides that the contract is conditional on the buyer obtaining approval for finance on terms satisfactory to the buyer providing the Buyer takes all reasonable steps. The Finance clause has often been seen as an easy way to exit the Contract. Often, this is not legitimately used, to the success of the Buyer to terminate a contract. However, the test is two-fold as the cases establish. There must be a reasonable attempt. Firstly, use generic terminology in the reference schedule. We suggest for the amount “sufficient to complete” and  “buyers choice” for financier. Although your banker or finance broker says to allow two weeks for finance approval, this will more likely mean 3 weeks. My advice is to err on the side of caution and add the extra time. You can always satisfy your condition early if you need to. Do not delay in your application. Whilst you may not necessarily need to show you were “declined” for finance, you must show that you have acted reasonably (and in other contracts such as the ADL, you may need to show an actual decline letter). The subject to finance clause is wonderful, albeit essential if you do not have the funds required to complete the purchase. But as with most things in law, there is an ongoing requirement to act in good faith and always check the terms you have agreed to. Be sure and contact us before you sign the contract even though you like the virtual inspection. If you need any assistance regarding REIQ contracts, feel free to email me at Katherine.blood@perspectivelaw.com or call direct on 07 3317 4306.


[1] Hauff & Anor v Miller [2013] QCA 48

The Voluntary Assisted Dying Bill 2021 passed by Queensland Parliament

Finally the Voluntary Assisted Dying Act (VAD) has come into force in Queensland after much debate and news coverage. But when does it start and what does it allow?

The commencement date for the legislation is important because it excuses medical practitioners from liability or criminal offence if they follow the procedures set out in the Act and regulations. The Act does not commence until January 2023 so there is a lot of time to see how this will work.

The principles that underpin this Act:

  • Human life is of fundamental importance;
  • Every person has inherent dignity and should be treated equally and with compassion and respect;
  • A person’s autonomy, including autonomy in relation to end of life choices, should be respected;
  • Every person approaching the end of life should be provided with high quality care and treatment, including palliative care, to minimise the person’s suffering and maximise the person’s quality of life;
  • Access to voluntary assisted dying and other end of life choices should be available regardless of where a person lives in Queensland;
  • A person should be supported in making informed decisions about end of life choices;
  • A person who is vulnerable should be protected from coercion and exploitation; and
  • A person’s freedom of thought, conscience, religion and belief and enjoyment of their culture should be respected.

It is important to note that the Powers of Attorney Act is not an Act that applies to the VAD Act, which means an attorney cannot give consent to assisted dying under this legislation as per section 159. This is also not a matter that is able to be decided under the Guardianship and Administration Act, if a person has a guardian appointed or the Public Trustee is acting where the person has lost capacity.

The way it will work is that a person who is affected by disease or illness can make a first request to a medical practitioner for voluntary assisted death, strictly under the terms of the Act. The major purpose is to ensure consent is properly obtained and that prohibited drugs are controlled as per the Medicines and Poisons Act 2019.

A death under this Act is not a “reportable death” under the Coroners Act 2003, meaning it is not to be investigated or requiring an autopsy. Grim stuff but someone has to make these decisions!

Section 155 states that “technical errors” or minor compliance issues will not affect the ability of a medical practitioner to assist with the process of dying of a person.

The “effectiveness” of the Act will be reviewed after 3 years by the relevant minister.

Probably one of the most important sections is:

149 Protection for health practitioners and ambulance officers:

  1. This section applies if a protected person, in good faith, does not administer life sustaining treatment to another person in circumstances where:
    • the other person has not requested the administration of life sustaining treatment; and
    • the protected person believes on reasonable grounds that the other person is dying after self-administering or being administered a voluntary assisted dying substance in accordance with this Act.
  2. No civil or criminal liability attaches to the protected person for not administering the life sustaining treatment.

So, good protection for front line health workers.

147 Protection for persons assisting access to voluntary assisted dying or present when substance administered.

Criminal liability does not attach to a person only because:

  1. The person, in good faith, does an act or makes an omission that assists another person who the person believes on reasonable grounds is requesting access to or accessing voluntary assisted dying in accordance with this Act; or
  2. The person is present when another person self-administers or is administered a voluntary assisted dying substance under this Act.

There are however various offences for giving prescribed medicines without obtaining proper authority, inducing consent, giving false or misleading information. This has a potential penalty of up to 7 years imprisonment.

The act provides for a review of decisions to QCAT regarding a person seeking access to voluntary assisted dying. This is to determine eligibility to apply including whether the person had the required capacity to seek consent or there was coercion or other intervening issue. The person must be an Australian resident for at least 3 years prior to the application and a Queensland resident for at least 12 months.

The procedure requires a First Request and First assessment by a qualified medical practitioner and then a follow up second request and final assessment before the process of voluntary assisted dying can occur.

Medical practitioners and qualified nurses can administer the prescribed medicines to assist the voluntary assisted dying process.

The key is a determination of capacity to make the final decision:

11 Decision-making capacity

A person has decision-making capacity in relation to voluntary assisted dying if the person is capable of:

  1. Understanding the nature and effect of decisions about access to voluntary assisted dying;
  2. Freely and voluntarily making decisions about access to voluntary assisted dying; and
  3. Communicating decisions about access to voluntary assisted dying in some way.

The person is to be “suffering” meaning suffering, caused by a disease, illness or medical condition, includes a physical or mental suffering; and suffering caused by treatment provided for the disease, illness or medical condition.

10 Eligibility

A person is eligible for access to voluntary assisted dying if:

  1. The person has been diagnosed with a disease, illness or medical condition that is advanced, progressive and will cause death; and is expected to cause death within 12 months; and is causing suffering that the person considers to be intolerable;
  2. The person has decision-making capacity in relation to voluntary assisted dying;
  3. The person is acting voluntarily and without coercion; and
  4. The person is at least 18 years of age.

Under section 8, voluntary assisted dying is not taken to be suicide and this will have an impact on many life insurance policies.

Please call us today on 07 3839 7555 if you would like to know more about this Act.

Key functions of an Agreement to Lease and its enforceability

From both the perspective of a potential Landlord or a tenant, an Agreement to Lease is often an important document that can highlight key points that are in agreement, prior to a Lease being prepared. If done correctly, it can reduce the points of negotiation or amendment that may be necessary after the Lease, as well as the costs involved. However, if not properly drafted, a tenant or a landlord may find themselves either:

  1. unintentionally bound to a lease or lease terms; or
  2. being unable to enforce the Agreement once the other party decides to not proceed.

When should there be an Agreement to Lease?

An Agreement to Lease is common for both commercial and retail shop leases as it allows the parties to agree on key terms prior to a Lease being drafted. It is especially common when there are remaining conditions, which prevents the immediate start of a Lease including:

  • fit-outs or other works required by the Landlord or Tenant prior to commencement;
  • an existing Lease yet to expire; or
  • finalising the conditions required before a Lease can commence such as:
    • In a Retail Shop Lease – review of the Landlord’s disclosures;
    • Deposit requirements;
    • Bank Guarantee or cash bond; and
    • Evidence of insurances as agreed.

What is included in an Agreement to Lease?

While an Agreement to Lease serves as a precursor to a Lease to be executed (and registered if required), key elements should still be specified including:

  • Parties’ details;
  • Rent and review amount;
  • Estimated Outgoings and the tenant’s required contribution;
  • Term including any options for renewal.

If specific work or condition is required during the period between the signing of the Agreement to the Lease being formalised, then those conditions should also be specified within the Lease.

I have changed my mind since signing the Agreement to Lease – is it binding?

Whether an Agreement to Lease is binding on the parties will depend on if the agreement intends to bind the parties and if there are any conditions to be fulfilled beforehand.

Commonly, the Agreement to Lease will not be binding immediately on the parties but will instead be binding upon specified conditions being fulfilled. Examples of conditions, per the above paragraph, can include the tenant’s requirement to pay a deposit or the fit-outs being completed within a certain time frame.

In other cases, the Agreement may make it clear that no parties intend to be bound to the Agreement to Lease until the formalising and the signing of the Lease itself. In this case, the Agreement to Lease serves as a drafting tool for the Lease in the current points that are in agreement. Such Agreements may set out the rights of termination, including a right to terminate if a Lease is not formalised within a specified time frame.

Lastly, an agreement can intend for the parties to be immediately bound upon signing. In a Queensland case in Colvin v Lennard & O’Brien the prospective tenant withdrew from an agreement two days after signing an agreement to lease. The Court found that the agreement intended for the parties to be bound on the basis that the agreement:

  • contained all key terms including the property, the parties, the lease period (including the commencement date), rent & outgoings; and
  • contained signing clauses by both parties in the form of an execution page that was akin to an offer and acceptance.

While the agreement contained conditions to be fulfilled before the Landlord passed on the possession of the Premises, it had no conditions precedent for it to be binding.

As the landlord in the case was unable to find another tenant from July 2006 to January 2007, the tenant was ordered to pay the equivalent rent and outgoings plus interest totalling over $150,000 plus costs.

To avoid a similar catastrophe arising from an Agreement to a Lease, it is important to ensure that all key terms are highlighted and understood by seeking legal advice, especially as many agreements are prepared by one of the parties or a commercial agent that may be involved.

If you have any concerns before signing an Agreement to Lease and whether the agreement will be immediately binding on you, please do not hesitate to contact us at brisbane@perspectivelaw.com

When to update your Estate Plan

23 August 2021 to 29 August 2021 is ‘Wills Week’ and a timely reminder to anyone who needs to update their estate plan. 

1. What documents are included in my estate plan?

Your estate plan includes more than just your Will.  It also includes:

  • Enduring Power of Attorney – who is appointed to make decisions on your behalf in the event you become incapable to make those decisions;
  • Advance Health Directive – who is appointed to make specific medical decision on your behalf;
  • Death Benefit Nominations for your superannuation;
  • Statement of Wishes;
  • List of Specific Gifts;
  • Digital Asset Register;
  • Trust Deeds and Deeds of Variation;
  • Business Succession documents.

2. When should I update my estate plan?

While we future-proof your estate plan as much as possible when drafting, circumstances change and it is important to review your estate plan every 3-5 years.  Your estate plan should also be reviewed when specific events occur, including the following:

  1. If you have a significant change in your assets.

You may have left a specific gift (particularly real estate) of one asset to a beneficiary and you have since sold that asset.  You may have new companies or family trusts and need to deal with the gifting of shares or control of the trusts in your Will.

  1. Significant change in your personal and family circumstances. 

There may be new children or grandchildren that you want to include.  You may need to update your enduring power of attorney so that your attorney can provide benefits for the needs of your new child.

A beneficiary may have passed away or no longer be part of the family through divorce.  One beneficiary’s needs might have changed meaning they need a greater share of the estate.

  1. Change in your relationship, including marriage, divorce or separation. 

It is important to note that divorce can render certain clauses invalid.  Marriage can revoke part of a Will, unless your current husband/wife is your executor and beneficiary or unless your Will states that it was made in contemplation of your marriage.  This can lead to parts of your Will being valid and other parts subject to the rules of intestacy. 

Separation does not revoke your Will.  Parties need to wait 12 months from separation before they can file for divorce.  It is particularly important on separation to update your estate plan to ensure your former spouse does not remain your attorney, executor or beneficiary.

  1. Changes to your attorney or executor. 

Acting as attorney or executor can be an onerous task.  It may be that your attorney or executor is no longer suitable for or willing to undertake the role.  Has your estate become more complex? Have the circumstances of your executor changed, such as health circumstances or a job with significant travel?

  1. Lapsing nominations

Superannuation is treated differently from the rest of your estate.  You can specify how your death benefits are to be distributed on your death through ‘death benefit nominations’.  Depending on your superannuation fund, some nominations lapse every three years.  It is therefore essential to update your nominations regularly to ensure they remain in effect and do not expire.

3. Do I need to prepare a whole new Will?

Sometimes it may be necessary to complete a new Will which has the effect of revoking any previous Will you have made.  If the change is only minor you can execute a Codicil, which is a separate document that either adds extra clauses or changes existing clauses in your current Will.  It is important that you do not make any handwritten amendments to your Will which could invalidate the document.

A valid and up-to-date estate plan is an investment for your future.  It ensures that your wishes can be carried into effect and that your proposed beneficiaries are able to receive the distributions you have provided for them.  This also makes it easier for your attorneys and executors and can make the administration of your estate smooth and cost-effective.

We would be delighted to assist you updating your estate plan.  Please email Lauren Nolan at lauren.nolan@perspectivelaw.com if you have any questions.