The numerous films about estates have people believe that when someone dies, the family will be summoned to a meeting with a lawyer for the ‘reading of the Will’.  There is no requirement for this to occur and it rarely takes place.  Instead, we often have clients who come to us because they believe they are a beneficiary of an estate (or are considering making a claim on the estate) but have not received a copy of the Will.  In some cases, the Executor has refused to provide a copy.

Who is entitled to obtain a copy?

In Queensland, the Succession Act 1981 states that a person in possession of the original Will must allow certain people to inspect the Will or receive a copy.  The persons entitled include:

1. A person named in the Will, whether as a beneficiary, executor or other person, including in an earlier Will;

2. The testator’s spouse, parent or child;

3. A person who would have been entitled to a share of the estate if the testator had died intestate (meaning without leaving a Will);

4. The parent or guardian of a minor child mentioned in the Will or a child entitled under intestacy;

5. A creditor and anyone with a legitimate claim against the estate;

6. Anyone eligible to make a family provision application.

The obligation is not limited to the last Will – it also includes prior Wills, Codicils and other documents purporting to be a Will.

How can I obtain a copy?

If you know who holds the Will, and satisfy one of the above categories, you can contact the person confirming that you are entitled under s 33Z of the Succession Act and that you would like to inspect the Will or obtain a copy.  If you request a certified copy of the Will then you may need to pay their reasonable expenses.

If you are entitled to receive a copy but the person in possession of the Will is still refusing, it is important to seek legal advice.  There are deadlines for Court applications (9 months from date of death for further provision) including challenging the validity of a Will or making a claim for further provision from the estate and you do not want to miss the opportunity to file an application.

What if I don’t know where the Will is?

It can be trickier if you don’t know where to begin looking for the Will.  You may ask the next of kin or other family members.  Otherwise, the deceased’s solicitor, accountant or even the funeral home may know where the Will is held.  If a Grant of Probate is being obtained, then it is also possible to access documents from the Supreme Court of Queensland.  A search in the Queensland Law Reporter will show the name and address of the person or the law firm making the Application for a Grant of Probate.

Can I seek a copy of a Will while the person is still alive?

There are no obligations to provide a copy of your Will to anyone during your lifetime.  In certain circumstances your power of attorney may seek to obtain a copy of the Will to check whether they are selling assets which were specifically gifted in your Will.  It is otherwise entirely up to you whether you choose to disclose the contents of your Will prior to your death.

If you think that you are affected by an estate and a Will has not been disclosed to you please contact Lauren Nolan for advice at Lauren.Nolan@Perspectivelaw.com or call us today on 07 3839 7555.

The historical view of an “average” family  comprised of a husband and wife (one marriage only) and their natural born children (more commonly!). However, as society evolves, so too does this picture. These days, we see a great variety of participants that make up the family unit. If you have seen the Film Blended with Drew Barrymore you know what I mean (and if you haven’t you should, it is fabulous!). The marital arrangements can vary in small ways (a couple on their second marriage) or it can be very complicated (think the brady bunch). I have seen a situation in the estate of man who died intestate where consideration was given to a Wife, a girlfriend, an ex-wife and children from the various relationships. All of them were “eligible applicants” for the definition under the Succession Act, to bring a claim on the estate for further provision. As I said, it can get complicated! A thorough family history is needed when you are embarking on estate planning. A question that arises often in light of this, is who a child of the relationship for the purpose of estate planning (and ultimately, in the context of Family Provision Applications).

The Succession Act defines “child” (in relation to a deceased person) as any child, stepchild, or adopted child of that person. Child, rather obviously referring to your natural born issue. An adopted child too, is relatively straightforward as this refers to a child with whom you have taken formal, legal steps to recognise the parent/child relationship. Stepchild however is where the situation gets more complicated. A stepchild under the Succession Act is a child of a spouse of the deceased person where the relationship continued until the deceased persons death. Importantly, this relationship of stepchild-stepparent does not cease merely because the spouse predeceases the deceased person in question. Clear as mud! Another example from practice. A couple are on their first marriage, but the wife has a child from a previous relationship. The couple have no children of their own and the wife dies. As the relationship between the husband and wife subsisted at the time the wife dies, the wife’s child is a stepchild of the relationship, despite the fact that the wife pre-deceases the husband.  It will be important what contributions they each made to joint assets.

Another scenario that is becoming increasingly thought provoking, is the impact of the In Vitro Fertilization (“IVF”) process in defining children of a relationship. If the IVF process uses samples from the father, the child is a natural born child despite the artificial intervention. However, where a couple have used a donor sample, legal adoption may be required to perfect your child’s interest in the fathers’ estate. Another scenario. A couple use IVF, one party uses their own sample and the other party uses a donor sample (for simplicity, lets say the mother uses her own sample and the father a donor sample). The IVF is successful, and the child is born. Whilst the couple are in a relationship, the Succession Act protects this child’s status as a stepchild (a child of the relationship). However, should the relationship between the mother and father end, the child would no longer be a ‘child’ of the fathers for the purposes of family provision application.  This is often a surprise to our clients as they have, for all intents and purposes, been the parent to the child through out their life. Sadly, too, this realisation often comes when it is too late to resolve any potential problems.

What these examples really highlight is how important estate planning is, particularly in the context of blended families. If you are in doubt about what steps you can take to protect your child’s interest, or if you are unsure about your position as a child of a relationship, please contact us for a consultation on 07 3839 7555 or email Katherine.Blood@Perspectivelaw.com or Tony.Crilly@Perspectivelaw.com.

Planning the succession of your business may involve the structure of the ownership of all assets used and consideration of the tax effect on sale. When you are involved in a commercial property or business sale you must carefully consider if the “GST sale as a going concern” ruling applies as a simple way to save the cashflow effect of paying GST in addition to the Purchase price in their transaction. You need to obtain advice from your accountant and legal advisor to be absolutely certain the “going concern” exemption applies to your specific circumstances, as it is a complicated ruling. If you assume that the going concern ruling applies to all transactions it might be a costly mistake, subject to the burden of paying the GST under the contract. Perhaps it is best to provide an overview of the requirements of when a sale transaction is a “going concern” and in what circumstances it will be GST-free.

Part 1: When is a transaction a “going concern”

Under the A New Tax System (Goods And Services Tax) Act 1999 (“The GST Act”), a supply of a going concern is defined as an arrangement under which:

• a seller supplies to the buyer “all of the things” that are necessary for the continued operation of an enterprise; [emphasis added] and;
• “the seller carries on” or will carry on, the enterprise until the day of the supply (whether or not as part of a larger enterprise carried on by the supplier)

For the purpose of a commercial property, an enterprise is defined in the GST Act and it includes the provision of a lease, licence, or other grant of rights in a property. As this activity must be on a regular or continuous basis, the lease arrangement must be in writing, in the form of a Lease or a Commercial Tenancy Agreement. The lease document should be entered into on or before the date of the supply, in this case, the Contract for sale. 

The requirement that the enterprise “carries on” means that the seller, being the lessor, ensures that the lease continues at least until the settlement date and preferably for a period after that. 

The purchaser must be able to demonstrate a present right to possession of the premises as a necessary thing for the operation of the enterprise.

Part 2: When are such transactions GST-free?

The GST Act provides that a supply of a going concern is GST-free when:

• the supply is for consideration; and
• the seller is registered or required to be registered for GST; and
• the supplier and the recipient have agreed in writing that the supply is of a going concern.

It is important to ensure that the above requirements are fulfilled prior to signing a sale contract. Every commercial sale contract should be reviewed by the parties’ lawyers and accountants, before being signed. Evidence that both of the parties are registered for GST should be provided.

Lastly, it is recommended to have a fallback clause, to ensure that if the transaction is not GST-free, there is an agreed party which is responsible for the payment of GST. Generally, this will be the buyer, unless the seller has failed to provide or fulfil the requirements in order to be eligible under the GST Act.

Often there are issues that arise which can cause the sale to fall outside of the exemption including:

• failure to achieve registration for GST prior to the date of settlement (for example where settlement is brought forward);
• failing to document and sign a formal lease agreement;
• failing to supply “all of the things necessary” for continued carrying on of an enterprise (this might be an item of key equipment or fixture required to operate);
• incorrectly stating the entity that owns the property to be sold where ownership is recorded differently;
• having the same entity as buyer and assignee of a lease (you cannot lease to yourself).

The rulings are complicated and worthy of careful consideration. Make sure you consider other exemptions that apply such as rural farm land and always seek advice before you sign the contract.

If you have any questions about “going concern” or require any advice on a commercial property contract, please contact Jake Cho at jake.cho@perspectivelaw.com or Tony.Crilly@Perspectivelaw.com or give us a call on 07 3830 7555.