In Times of Need - Assisting a Senior Manage Their Spouse's Funeral


The death of a loved one is always a difficult experience and planning a funeral is usually not the first thing a spouse wants to do in the midst of grieving. Whether or not arrangements have been made in advance, there is a lot that goes into planning a funeral. If you are the family member or close friend that is helping a surviving spouse during this devastating time, there are some things you can do to move the process along and alleviate some of the burden.


Commit to help and get others involved


The first thing you want to do is make it clear to the grieving spouse that you will do whatever is needed to relieve some of the stress of the funeral planning process. They will likely have a hard time thinking clearly and will need assistance making decisions in such an emotional time. Depending on your relation to the deceased, you may be experiencing grief yourself. Withdraw when needed to process your own grief, but try to make comforting the spouse your first priority. Also, don’t be afraid to ask other family members and friends for help and delegate tasks out. Coordinating a meal registry with as many people as possible is another practical way to help.


Choose a funeral director


After notifying friends and extended family of the passing, you will want to help the spouse find a funeral home and director. There are some bad seeds in the bereavement business, so educating yourself and evaluating the intentions of the funeral director is vital.


You will then meet with the director to make decisions on funeral proceedings. Embalmment or cremation? Opened or closed casket? If the body is cremated, will the ashes be scattered or deposited into an urn? You also may need to decide on a burial site and discuss any religious traditions that should be respected. Even if such matters have been drawn out on a prearranged plan, they must be confirmed and changes may need to be made due to last-minute wishes or financial concerns.


Ensure that financial affairs are in order


Another important part of helping the spouse is to make sure financial affairs—before and after the funeral—are being taken care of. Since these matters are typically numerous and complex, you will want to assemble a team of professionals to help with the spouse’s financial affairs. This usually includes a lawyer, accountant and financial advisor to handle things such as life insurance claims, wills, powers of attorney, transfers of funds, reviewing real estate and preserving assets. Bringing on professionals you know and trust is the best way to go, but if you need to hire someone new then it’s good to do some research to make sure they will indeed make the process easier instead of more confusing. It’s also good to help the spouse apply for government benefits and check with past employers for any accrued pensions that should be paid out.


Address the spouse’s long-term care


A surviving spouse’s grief will last long after the funeral is over. It’s important for them to have someone to support them as they cope during this time, as well as help them make any changes that are necessary. Like having a prearranged funeral helps when the day comes, so does having a care plan in place. However, when the death of a spouse comes unexpectedly and no plans have been made, the surviving spouse and those helping them must be intentional in planning their self-care. Deciding how and where to live, getting finances in order, and securing the proper health care are of utmost importance. Also, family and friends who are close to the spouse should know about the plans so that they can serve as an adequate support system. It helps to have plans that are both cohesive and flexible.



No one looks forward to the day that their beloved spouse passes from this world. Whether it’s unexpected or from a long-suffered illness, it’s a terrible thing to endure and an overwhelming time in the surviving spouse’s life. Especially when the spouse is older, help is needed to guide them through the funeral planning and grieving process. By committing to help and getting others involved, choosing a trustworthy funeral planner, ensuring that financials are in order and making accommodations for long-term care, you’ll be well on your way to being a blessing to someone in their time of need.


 An article prepared by Marie Villeza of Life Force Care

Photo Credit: Unsplash



Chile has managed to quadruple its clean energy sources since 2013, resulting in a 75% drop in the average cost of electricity. C'mon Australia. IPS News

Russians are drinking and smoking less than at any point since the fall of the Soviet Union, with tobacco use down by a fifth since 2009, and alcohol by 20% since 2012. Straits Times

Following the legalisation of medical marijuana in US states that border Mexico, robberies have declined by 19%, murders by 10%, and drug-related homicides by 41%. Forbes

After a 30 year long fight, the Norwegian Animal Rights Organization (NOAH) has just announced that Norway will implement a total ban on fur farming. Live Kindly

The number of suicides in Japan dropped by 3.5% in 2017, marking the eighth straight year that the overall rate has come down. NHK World

The United Kingdom is creating a forest of 50 million trees between Liverpool and Hull, and China will plant 6.66 million hectares of new forests this year, an area the size of Ireland.

Plastic bans go into effect this month in Montreal, Vanuatu & the United Kingdom, an Iceland supermarket has become the first major supermarket to say it will eliminate plastic within five years, and the European Union says it will make all packaging reusable or recyclable by 2030.

Courtesy of FutureCrunch and Andrew Andreyev who alerted me to the articles.

The TAX Office has released a long-awaited guide on trust vesting*

The Tax Office has delivered a substantive release on trust vesting with the publication on 13 December 2017 of Draft Taxation Ruling TR 2017/D10.

Subject to being issued as a final ruling, Draft TR 2017/D10 attempts to resolve many of the uncertainties surrounding trust vesting.


In summary, the key conclusions from the draft ruling are as follows:

  • While a trustee may be able to extend an approaching vesting date during the life of the trust to the maximum period available at law (generally 80 years), it is unable to be extended after the trust has vested without a court order. 
  • Upon the vesting of a discretionary trust, the trustee holds the trust property for the absolute benefit of the takers-in-default named in the trust deed. 
  • The vesting of a trust will not necessarily, of itself, result in a CGT event. However, this is dependent on the terms of the trust deed and subsequent steps, such as the transfer of assets to the beneficiaries by the trustee, which may result in a taxable event. 
  • While the trustee of a discretionary trust may distribute income between the range of beneficiaries in its discretion during the life of a trust, following vesting, all income is deemed each year to be distributed to the takers-in-default in proportion to their vested interests in the property of the trust. 

The Tax Office's conclusions in the ruling appear to be largely uncontroversial, although it is interesting to note it has finally explicitly acknowledged that the vesting of a trust will not, by itself, result in any CGT event in many circumstances.

Arguably the key reason for the relatively uncontroversial nature of the draft ruling stems from a failure to consider many of the fundamental issues the industry has been grappling with for some years.

Indeed, the main position adopted by the Tax Office on a potentially controversial issue is its rejection of the argument that a vesting date may be extended by implication where the vesting day has lapsed and all parties have behaved in a manner which is consistent with the vesting day having been extended.

Relevant CGT Events

As is generally understood, the relevant CGT events upon the vesting of a trust are A1, E1 and E5, as summarised below. The draft ruling confirms that (subject to the terms of the relevant deed), it is possible none of these events will occur on the vesting of a traditional discretionary trust.

CGT event A1

Section 104-10 of the ITAA 1997 defines when CGT event A1 occurs and reads:

(1) CGT event A1 happens if you dispose of a CGT asset. 
(2) You dispose of a CGT asset if a change of ownership occurs from you to another entity, whether because of some act or event or by operation of law. However, a change of ownership does not occur if you stop being the legal owner of the asset but continue to be its beneficial owner. 

In the context of a trust vesting, CGT event A1 will be triggered if the trustee transfers an asset to a beneficiary by way of an in specie distribution in satisfaction of that beneficiary's entitlement.

In other words, it is not the vesting itself which would trigger the CGT event. Rather, it is the subsequent disposal of the asset by the trustee which results in CGT event A1 arising.

CGT event E5

CGT event E5 is defined in s 104-75 of the ITAA 1997 which reads:

(1) CGT event E5 happens if a beneficiary becomes absolutely entitled to a CGT asset of a trust (except a unit trust or a trust to which Division 128 applies) as against the trustee (disregarding any legal disability the beneficiary is under). 
(2) The time of the event is when the beneficiary becomes absolutely entitled to the asset. 

At face value, CGT event E5 is the most applicable event arising upon the vesting of a trust, as it could be thought that a beneficiary would become "absolutely entitled" to the trust assets either as a result of a positive determination by the trustee or as a consequence of the default provisions under the trust deed.

However, as discussed in more detail below, the concept of "absolute entitlement" is complex and at times, contentious.

Consequently, it is generally seen (and apparently now accepted by the Tax Office in Draft TR 2017/D10) as unlikely that CGT event E5 will occur automatically upon the vesting of a trust.

CGT event E7

Section 104-85 of the ITAA 1997 defines when CGT event E7 occurs and reads:

(1) CGT event E7 happens if the trustee of a trust (except a unit trust or a trust to which Division 128 applies) disposes of a CGT asset of the trust to a beneficiary in satisfaction of the beneficiary's interest, or part of it, in the trust capital. 

As CGT event E7 only applies where a beneficiary has an interest in the trust capital, it will rarely apply in the context of the vesting of a discretionary trust.

CGT event E5 and absolute entitlement

As outlined above, CGT event E5 was traditionally regarded as the CGT event most likely to apply upon the vesting of a trust.

However, Tax Office rulings and cases prior to the release of Draft TR 2017/D10 cast significant doubt on the correctness of this position.

Specifically, CGT event E5 applies where a beneficiary becomes "absolutely entitled" to the assets of a trust.

The meaning of the term "absolutely entitled" is subject to significant contention and debate as evidenced by the ongoing failure of the Tax Office to issue a final version of TR 2004/D25 (2004 is not a typo; the draft TR has remained unfinalised for well over a decade).

Saunders v Vautier (1841) EWHC Ch 82

The 19th century English decision Saunders v Vautier set the groundwork for the concept of absolute entitlement.

In that judgment, Lord Langdale MR held:

"I think that principle has been repeatedly acted upon; and where a legacy is directed to accumulate for a certain period, or where the payment is postponed, the legatee, if he has an absolute indefeasible interest in the legacy, is not bound to wait until expiration of that period, but may require payment the moment he is competent to give a valid discharge."

The judgment has been interpreted as meaning that where a beneficiary who has attained the age of 18 has a vested and indefeasible interest in a trust asset, they can issue a call to the trustee requiring the transfer of the asset to them.

The principles of this case are akin to that of absolute entitlement. Where a beneficiary has a vested and indefeasible interest in a trust asset sufficient for them to require the trustee to transfer the asset to them, they are likely to be absolutely entitled to that asset.

Draft TR 2004/D25

In summary, Draft TR 2004/D25 takes the position that absolute entitlement over a single asset will only arise where a single beneficiary has all the interests in that asset.

Following that line of argument, the draft ruling concludes that if more than 1 beneficiary has an interest in a particular asset, no beneficiary will be absolutely entitled to that asset.

Applying this to a discretionary trust which generally vests with multiple beneficiaries each being entitled to a percentage of the trust assets, Draft TR 2004/D25 implies that none of those beneficiaries would be absolutely entitled as against the trustee (unless each beneficiary had an entitlement to a discrete asset).

Furthermore, the draft ruling takes the view (at paragraphs 16-19) that:

a beneficiary can be absolutely entitled to an asset even though they hold their interests in it as trustee for 1 or more others; 

the existence of a mortgage or encumbrance over the asset in favour of a third party does not prevent the beneficiary from being absolutely entitled; 

the existence of a trustee's lien (and ability to sell the assets of the trust) to enforce a right of indemnity against a trust asset will not prevent a beneficiary from being absolutely entitled to the asset; and 

a beneficiary can still be absolutely entitled to an asset for CGT purposes where they are suffering a legal disability (such an infancy or insanity). 

The correctness of a number of points contained in the draft ruling are subject to significant conjecture, perhaps none more so than the ramifications of the trustee's right of indemnity out of trust assets.

This point was tested in the decision of FCT v Oswal [2012] FCA 1507 ("Oswal"). Interestingly, this decision is not mentioned in Draft TR 2017/D10, despite an opposite conclusion being reached in Example 7 (which concludes that where a trust vests with a sole capital beneficiary, that beneficiary becomes absolutely entitled to the trust assets and CGT event E5 occurs).

FCT v Oswal [2012] FCA 1507

The Oswal case involved the trustee of a discretionary trust who decided to make 2 beneficiaries entitled to specific assets of the trust, being shares in a company.

The Tax Office put forward several alternative positions regarding the exercise of the power by the trustee, namely that it triggered 1 of:

CGT event E1 (creation of a trust); 

CGT event E5 (creation of absolute entitlement); or 

CGT event A1 (disposal). 

By contrast, the taxpayer argued that the determination by the trustee did nothing more than establish "a separate fund of assets under the umbrella of the trust" and that the determination did not trigger any of the CGT events listed above.

The Federal Court determined that CGT event E1 (creation of a trust) was triggered by the determination and a subsequent application by the taxpayer for leave to appeal the decision was denied by the Court.

The most significant comments in the judgment however perhaps related to the arguments regarding CGT event E5.

Justice Edmonds found that CGT event E5 could not arise, because the beneficiaries could not become absolutely entitled to trust assets where the trustee had a lien over the assets in respect of its right to be indemnified for trust liabilities out of trust assets.

Adopting the Court's view in Oswal, it seems the beneficiaries of a discretionary trust will rarely (if ever) be absolutely entitled against a trustee when a trust vests, as the trustee will always have a common law right of indemnity out of trust assets, able to be satisfied via an equitable lien.

While draft TR 2017/D10 does not explore any of the above arguments, it does still reach largely the same conclusion. It is hoped that before the final ruling is issued, the Tax Office does explain the reasons for concluding that CGT event E5 does not occur on the vesting of a trust and the inconsistency between the Oswal decision and the Example 7 in the draft ruling is addressed.

Some of the missing answers

The draft ruling does not attempt to address a range of questions that would seem to be critical to include before the ruling is finalised.

For example:

In what circumstances will a power of variation be deemed to be too narrow to allow an extension of a vesting date? 

If a power of variation expressly permits retrospective amendments, why will this not allow a vesting date to be extended after it has passed (the draft ruling is blunt in its view that a trust vesting date can never be extended once it has passed)? 

If there are no default beneficiaries, will the trustee of the trust be taxed on all income and capital gains derived (at the top marginal rate, with no CGT discount) pending the assets of the trust being distributed? 

Alternatively, if there are no default beneficiaries, does the Tax Office instead believe that the assets of the trust pass on a resulting trust to the settlor? 

Can a trustee resolve to amend the jurisdiction of the trust to South Australia, and thus have any vesting date essentially abolished? 

If an individual default beneficiary of a vested trust dies before the trustee distributes the assets to them, do those assets pass in accordance with their will, without tax consequence due to Div 128 of the ITAA 1997? 

What approach will the Tax Office have in relation to lost trust deeds, where it is impossible to confirm the date of vesting? 


Draft TR 2017/D10 provides some welcome clarity to the Tax Office's view in relation to trust vesting, although much of the guidance it provides is subject to the qualification that the issue "requires a close consideration of the effect of vesting as specified in the deed" and is subject to language such as "…it may be the case…".

Perhaps however these comments are merely the Tax Office using its language to restate the mantra featured regularly in this blog post, namely – 'Read the Deed'.

Furthermore, as flagged above, there are a number of fundamental issues that have not been considered at all; a disappointing outcome given how long it has taken for the draft ruling to be released.

Without being deliberately trite, it is hoped that the final version of Draft TR 20017/D10 does not suffer the same delays as Draft TR 2004/D25.

* With the approval, the above post is based on a post by Matthew Burgess of View Legal .


Digital solutions to help mum (or dad) live in their own home longer

This article has been contributed by Maria Villeza of Elderimpact who wishes to share some of the valuable insights she learnt while coping with the challenges of assisting an ageing parent.  It's a common scenario, one where modern technology has an import role to play as Marie explains. 

Photo by Jeremy Wong on Unsplash

As we age, our parents and older family members are aging, too. Some to the point that they need more care than we may be able to provide. If your parent lives in another city or state, you have another layer of complication to an already difficult situation.


Fortunately, technology is catching up to the the elder care industry. Seniors are able to stay in their homes longer thanks to new digital solutions.


There are new systems being unveiled all the time, creating ways for you to stay in touch with a senior loved one. If you don’t think your mom could handle FaceTime or Skype, there are systems that are simple to use and created specifically for older adults, some even connect through her TV. Now, besides being able to call mom regularly with the help of cell phones, you can video chat with her, which helps you get a better idea of how she’s doing. Is she too thin? Showing signs of injury or distress? Seeing her face to face is a good way to be on the lookout for problems, which you can act on with her doctor or nurse.


If you’ve struggled with your elderly parent because of his or her past substance abuse, now is the time to work on mending fences. It’s a struggle to forgive, for sure, but opening communication is the best start. Perhaps when you visit, you can take mom to a therapist where you can work on the issue together, or just a quiet, simple talk will open some doors. Moving past your troubled relationship with your mom will help you improve relationships with your own spouse and children. Technology can help ease that transition and prevent you from worrying about mom so much.

We’re all familiar with alert systems that the elderly wear around the neck in case of a fall. Newer systems work with GPS so that if mom goes out and has an emergency, she can call for help and emergency services will be able to find her.

Even more thorough are elderly monitoring systems you can install in mom’s home to sense her movement throughout the day. This can help you see that she’s getting up, moving around and able to care for herself. If she’s leaving the house at odd hours, she might be wandering around, which requires intervention.

There are apps for caregivers that allow you to check all her health information on your phone, to connect with her doctor or pharmacist and even give her an alert when an appointment is coming up.

If you’re worried about mom not taking her medication properly, there are electronic pill dispensers that can hold multiple medications and dispense them at the proper time. You and her pharmacist can connect with them digitally to make sure the correct medication is being taken at the correct time, lessening a chance of missing a dose or accidental overdose.

The list of tech innovations for the elderly is long and constantly expanding. There are high-contrast keyboards, easy-to-use tablets, single-button cell phones, cell phones that dial with just a photo, wrist bands that remind you of anything, senior-friendly thermostats and more. There are even feeding robots (still in the beta-testing phase)!

When it comes to taking care of an elderly loved one, communication is key, whether you’re in another state or right next door. Staying on top of mom’s health care and happiness is a tough job, but there’s no one better to do it besides you.

You can contact Marie at:


The Demise of Lawyers - Enjoy the Read - I invite your comments


Is artificial intelligence making lawyers a disappearing profession?

Silence in court. Come to think of it, it might be very quiet if all the lawyers' work is done by computer. Supplied

by Jason Koebler

Near the end of Shakespeare's Henry VI, Part 2, Dick the Butcher offers a simple plan to create chaos and help his band of outsiders ascend to the throne: "Let's kill all the lawyers." Though far from the Bard's most beautiful turn of phrase, it is nonetheless one of his most enduring. All these years later, the law is still America's most hated profession and one of the least trusted, whether you go by scientific studies or informal opinion polls.

Read the full article here:



Don't believe the hype - trusts do protect assets

With the recent adverse publicity being given to discretionary trusts many of my network of financial advisers and accountants have questioned the value of trusts for asset protection purposes.  Let me dispel some of the fear mongering.

Arguably the highest profile decision that questions the usefulness of trusts for asset protection is the decision in Richstar(1).  

The Richstar decision hasn't found traction.  Recently the 2016 decision in Fordyce(2) reinforced the view that the reasoning in Richstar, in so far as it relates to the ability to attack assets held via a discretionary trust, is at best questionable. 

In particular, the case confirms succinctly as follows -

'It is difficult to accept as a principle of reasoning that a beneficiary’s legal or de facto control of the trustee of a discretionary trust alters the character of the interest of the beneficiary so that it will constitute property of the bankrupt if the beneficiary becomes a bankrupt.

To the extent that Richstar might be thought to support such a principle, it has not been followed or applied subsequently and it has been criticised academically.'

There are numerous decisions that reached a similar conclusion. A selection of the subsequent cases is summarised below.

1.         Tibben & Tibben [2013] FamCAFC 145 - The only ‘entitlement’ of the beneficiaries under the trust deed was a right to consideration and due administration of the trust;

2.         Deputy Commissioner of Taxation v Ekelmans [2013] VSC 346 - The applicant relied on the decision in Richstar to argue that the cumulative effect of the role and entitlement of Mr Ekelmans under the trust instruments amounted to a contingent interest in all of the assets of the trust, making those assets amenable to a freezing order as if the assets of Mr Ekelmans. The Court found that the applicant could not in this matter rely on Richstar;

3.         Hja Holdings Pty Ltd and Ors & Act Revenue Office (Administrative Review) [2011] ACAT 91 – notwithstanding that beneficiaries under a ... discretionary trust have some rights, such as the right to have the trust duly and properly administered, generally a beneficiary of a discretionary trust, who is at arm's length from the trustee, only has an expectancy or a mere possibility of a distribution. This is not an equitable interest which constitutes "property" as defined;

4.         Donovan v Sheahan as Trustee of the Bankrupt Estate of Donovan [2013] FCA 437 - a beneficiary of a non-exhaustive discretionary trust has no assignable right to demand payment of the trust fund to them (and nor have all of the beneficiaries acting collectively) and that the essential right of the individual beneficiary of a non-exhaustive discretionary trust is to compel the due administration of the trust;

5.         Simmons and Anor & Simmons [2008] FamCA 1088 – the court and parties referred to Richstar on a number of occasions and confirmed that a beneficiary has nothing more than an expectancy.


(1) Australian Securities and Investments Commission v Carey (No 6) (2006) 153 FCR 509). 

(2) Fordyce v Ryan & Anor; Fordyce v Quinn & Anor [2016] QSC 307

This post contains extracts from a recent article written by Matthew Burgess of View Legal.  I was penning a blog on this topic when I read his article.  Thank you Matt, you saved me a lot of ground work.    

Separated? The risk of death before property settlement.

New Year is separation season for many.  Divorce lawyers are the most googled professional, and BBQs, the watercooler and other gatherings are plagued with separation stories, tears or masculine manifestos (as the case may be).  Individuals, family and friends are dragged into the bad times vortex by a grief akin to the death of a loved one.  

How can you make it worse?  Die before you have a binding property settlement .... and your ex gets everything, or the best part of everything - that is the most common scenario.  Unfortunately fatal accidents and sudden health events occur all too often especially when living with the pressure of separation.

Why Worse?

If you have Will you probably leave everything to your spouse/partner and  separation doesn't change the validity of your Will. So die without drafting a new Will and the Ex inherits the lot under your Will.

... and if you don't have a Will?  Then the intestacy laws apply and give all (or a significant part) of your wealth to your Ex.  It varies from State to State with different rules applying in each State and Territory - an unlucky dip of sorts.

And assets owned jointly?  Well they pass to the survivor on death unless held as tenants in common (which is rare).

The Solution?

1st       Get a fresh Will done now.  One made in contemplation of divorce.  It's easy and provides peace of mind.

2nd    If you jointly own property, see a lawyer today and get the title changed to tenants in common.  Other actions may be needed for other jointly owned assets.

Call me if you'd like to discuss the issues: 0438 136 118 or email me on:





Top Tips for Managing Your SMSF in 2017

2017 heralds many rule changes for self-managed super fund (SMSF) members.  There are a few things you must do to stay ahead of the game -  and do them BEFORE the changes commence.

1. Stay within the New Super Pension Cap

If you have a large super balance, you need to ensure that from 1 July 2017 onwards, you have no more than $1.6 million in pension phase.

If your balance exceeds $1.6 million you will have to "commute" (ie; revert back to accumulation phase) part or all of your pension fund so that you fall within then new cap.

2. Take advantage of existing Contribution Caps

New concessional caps start from the 2017/2018 financial year.  Currently if you are 49 and over you can now contribute $35,000 a year to your super fund tax-free.  Younger people are limited to $30,000.  

But a flat $25,000 a year will apply from 1 July for everyone.

Action: maximise you current contributions take advantage of the current contribution caps. 

3. Review Transition to Retirement Pensions

There will be a reduction of the tax exemption available from earnings within pension funds that are in a 'transition to retirement' stage.   In other words, transition to retirement pensions won’t be as tax effective as they are now.

At present it is common for members of a super fund who has reached the preservation age of 55 and are still working to take advantage of provisions that allow them to contribute up to $35,000 into their super fund and also receive a small pension.  They pay no tax on the pension or a concessional rate of tax.

These transition to retirement strategies will become less tax-effective from 1 July 2017.

Action: seek professional advice to determine whether you should commute your pension back to the accumulation phase.

4. Consider reviewing the CGT cost base of your super assets

If you have unrealised capital gains in your SMSF, and your pension will be affected by the new rules, there is a one-off opportunity to 're-set' your CGT cost base. This concession has been introduced as part of the transition to the new super environment that starts on i July.

Action: seek professional advice to determine whether you should re-value your assets now and to re-set your CGT base, and pay some CGT now.  In many cases, this will result in significantly less CGT when you sell assets in the future.

5. Salary Sacrifice options - review them now.

From 1 July 2017 there will be an alternative to salary sacrificing - you will be allowed to make ‘personal concessional contributions’ instead.

Under this arrangement you will be able to contribute up to $25,000 a year from your own resources, less any employer contributions the fund receives.

These new contributions will be more flexible than the former salary sacrifice arrangements.

Action: seek professional advice to determine what advantages may be available to you under the new personal concessional contributions arrangements.


Speak to your financial adviser and lawyer to familiarise yourself with the new rules to ensure your fund remains compliant from 1 July and, ensure you are maximising the advantages that remain available.


Capture your family history on film - Why making Heirloom Films matters

As an estate planning specialist who deals with family legacies (the good, the bad and the ugly) I'd like to let you in on a secret.  The best gift you can give your family for Christmas (or any time) is affordable high-quality documentary about your loved ones.

Heirloom Films produce just that.  Documentaries about your loved ones to record life stories and preserve family history. Using interviews, photos and music, they create cinematic heirlooms for generations to come.

How it began

Heirloom Films was founded by award-winning documentary director, Simon Cunich (Disclosure: my son). When his grandma was diagnosed with dementia, Simon turned his filmmaking expertise toward a personal project: to record her life stories before it was too late. From 2 hours of interview footage Simon produced a 15-minute film that is cherished by the whole family.

Heirloom Films was established to give other families the same opportunity. To find out about how Heirloom Films can create a documentary for your family visit the WEBSITE

or call 1300 08 20 10.

READ MORE:   View the following story in your browser  

Why making Heirloom Films matters

Simon recently made a film about Pat, a lively 84 year old woman who alongside her husband ran a beer trucking business in the Hunter Valley for many years.

Sadly Pat passed away unexpectedly not long after the film was finished. Her son told us that the film captured “her dreams and childhood memories, the lifelong philosophies she has held dear, and the sense of achievement she expressed for her work with my father. In many ways I rediscovered my parents lives from an earlier time."

"What a fabulous gift for us. No photo album can ever offer the pride that this film has given our family."

What’s the most meaningful gift you can give?

It might not be your average stocking filler, but for many of our subjects, having a film made about them is a precious gift that shows them how much they are valued by their families. Our subjects are energised knowing their legacy will be kept alive for generations to come.

If you’re thinking of giving an Heirloom Films gift, we have a range of different packages available, starting at $1,499. Get in touch with Simon to find out more.

View the following story in your browser


Why making Heirloom Films matters

We recently made a film about Pat, a lively 84 year old woman who alongside her husband ran a beer trucking business in the Hunter Valley for many years.

Sadly Pat passed away unexpectedly not long after the film was finished. Her son told us that the film captured “her dreams and childhood memories, the lifelong philosophies she has held dear, and the sense of achievement she expressed for her work with my father. In many ways I rediscovered my parents lives from an earlier time."

"What a fabulous gift for us. No photo album can ever offer the pride that this film has given our family."

What’s the most meaningful gift you can give?

It might not be your average stocking filler, but for many of our subjects, having a film made about them is a precious gift that shows them how much they are valued by their families. Our subjects are energised knowing their legacy will be kept alive for generations to come.

If you’re thinking of giving an Heirloom Films gift, we have a range of different packages available, starting at $1,499. Get in touch with us to find out more.


                                                                                                         Leslie - Simon's grandmother and my mother

                                                                                                         Leslie - Simon's grandmother and my mother


Don't put the fox in charge of the chicken coop.

Deciding who you appoint as the first choice of executor and substitute executor(s) can be a challenge.

The choice of a competent non-family member is always a good first choice.

That said, couples often appoint each other as each others first choice.  If the surviving spouse satisfies the consideration listed below then it's a sound choice - but think through the issues before making the decision.

 In all cases when it comes to appointing one or more family members there are lots of things to consider.

 The most obvious issues to consider are:

1.       Convenience (where are they located)

2.       Skills / competence

3.       Family dynamics (who likes/dislikes or trusts/distrusts who)

4.       Relationship between executor and beneficiaries

Being local is an important consideration. If your first choice (or one of them) lives a long way away it can become inconvenient.  If they live overseas they can't be appointed. 

 If you choose a child then it should be fine provided:

  1. the child has the skills to manage the estate,
  2. the child is fair minded, trust worthy and enjoys a good relationship with their siblings, and
  3. most importantly: you discuss with all your children who you have appointed and why, and obtain their genuine acceptance.  The reason for this is that if the appointment of one of them catches the others by surprise, or they do not like your choice then disharmony will follow as night follows day.  Having this conversation and gauging the response is critical. 

If these three issues are addressed and you have a green like on all three then go ahead with your preferred choice of child.  Alternatively, appoint  more than one if each are local and these three issues are again covered off on.

Sometimes people appoint an 'incompetent' child along with competent children simply to maintain harmony and avoid anyone feeling 'left out'.  This will only work if they like and respect each other and can work together.  Foisting siblings who don't get on together is a recipe for disaster.

When it comes to your Enduring Power of Attorney I’d recommend (if the same three issues are satisfied) that you appoint two (or more) rather than one. The reason for this is twofold:

  1.  it can be an onerous task so it enables the sharing of the load, and
  2. if there are two attorneys who have to confer with each other it helps ‘keep them honest’.  I do not suggest they aren’t honest but the fact is that many children deliberately or inadvertently misuse Enduring Powers of Attorney.  Although a very important document to have in place they do contribute to the growing incidence of elder financial abuse.

Shanghai to Moscow along the old Silk Road - lawyer goes rouge

For me October 2016 was like a condensed journey from cradle to grave.  A life time of experiences in a single month through China, Kazakhstan, Uzbekistan, Turkmenistan and Russia.

It's not just the locations (mind you, they are pretty amazing) - the history defies fiction.  Today's reality too defies fiction.  Oil + Gas + Cheap Labour + Technology, stirred with a good dose of dictatorship makes for interesting development.    

I invite you to have a look at my online photo album at this LINK. Select “Preview” and then click on each page to turn it over.  Don’t select ‘purchase’.

Escorting a group of doctors on a tour and helping conduct a medical conference (my other personae) was a break from my daily routine.  I hope you enjoy some of the images.  There is a story behind most.

My next blog will be back to some as exciting as choosing your executor.  Death defying.






When is the right time to write a Will? and Why?

The answer is really simple: before you lose your mental capacity or die. But here is a story ....

Just tell me when you will lose your marbles or your life and I’ll fix up a Will for you the day before.  If there is nothing in your calendar dealing with either event, then the timing becomes a bit more problematic. The solution however remains simple.

A month or so ago, whilst ungracefully hurtling through the air toward oblivion after a car had pulled out in front of my bike (the cycling variety), it occurred to me in a flash that ‘now’ might be my next to last moment … and I’m not old, regardless what my kids assert.  

Thankfully it wasn’t.   

In the drug induced haze that followed (administered in the emergency department, not self administered), whilst nursing bruises and breaks - I didn't 'SEE THE LIGHT'.   It did occur to me however that my little flirtation with fate was a timely reminder that none of us can be assured a long, healthy life.  Or one without a life-changing injury. 

A statistic I'd quoted recently floated through my haze: approximately 34 Australians between the age of 18 and 64 prematurely die every day through accident or disease.  That's a big number, a lot of people who had planned to live to a ripe old age. But didn't.

So, when should you do your Will?

If you don’t have one, then: ‘now’ would be good starting point.  Same for an Enduring Power of Attorney.

Contrary to common belief, I can testify to the fact that merely signing a Will won’t actually kill you.  Nor will signing a Power of Attorney make you lose your mental capacity.

So what are my general recommendations?

First will
Create a will when you first have property or a child (to provide for a guardian for the child). Young people often own wealth they don’t realise, such as superannuation death benefits and/or a life insurance policy (often part of your super package). These may not be assets you can spend today, but die and these assets suddenly materialise and need to be managed and distributed. Without a Will it’s a bit of a lucky (or unlucky) dip as to who receives your assets.

Each State and Territory in Australia has intestacy laws that operate as a de facto Will for those who leave no Will when they die. Where there is no Will, assets typically go to the spouse. In some states a spouse has to share the assets with children (there isn’t even a consistent outcome across the country). If the spouse has predeceased, assets usually go to the children equally. If there are no children, typically they will go to the parents, and from the parents down to other family members.

If there is a spouse (even if separated) and a de facto, then things get really interesting because in some States, they have to divide the estate ‘by agreement’. Throw children from one or both of the relationships into the mix and you have the plot for a horror movie!

This procedure requires an application to the court, which is more expensive than a probate application because someone has to start from scratch. Legal costs escalate, delays often occur and claims against the estate often come out of the woodwork by people who claim they should have received a benefit that wasn’t provided for in the statutory formula.

Am I scaremongering or being a tad melodramatic?  If only it were fantasy.  Ever heard the saying that ‘truth is stranger than fiction’? Search around the internet for stories and court decisions about family hardship and disputes arising from the absence of a Will or a ‘proper’ Will. The reality is that living without a Will is like playing Russian Roulette with your estate.

Here is a sample of what can occur:

Mary was an abused child. Because of this, she left home as soon as she could, at age 16.  She never spoke to her parents again. With that part of her life behind her, Mary put herself through university and started a career.

Then she met Joe, a successful stockbroker whom she married. Joe was slightly older than Mary. They enjoyed a good marriage, and Joe’s family became her family. Alas, after eight years of marriage, Mary and Joe died in a car accident. They had no kids. Neither of them had a Will.

Being the older of the two, Joe was deemed to have died first and his wealth notionally passed to Mary. Under the intestacy laws all of Mary’s acquired wealth then passed to her estranged parents – the last people on earth to whom she would have wished to leave her estate. To rub salt into the wound – Joe’s family got nothing.

Second Will
Commonly people in there 40s revisit their Wills because by this stage that have acquired some property (although often heavily mortgaged) and have the responsibility for a family and/or a business.

Third Will
Again, people in their late 50s or early 60s revisit their wills because by this time they have paid off some of their debt, have some investments and are beginning to think ahead towards support of their adult children and their own retirement. This is sometimes accompanied (or instigated) by their first health scare, a mild stroke or heart attack being a wake-up call. Or cycling accident!

Fourth Will
People in their 70s and 80s often revisit their wills because by this time they are more focused on their own mortality and want to ensure that they have their house in order. 

Other times:

Everyone should at least reflect on whether their current Will is still appropriate when any of the following events occur:

  • a birth or marriage: of a beneficiary or executor
  • a death: of a beneficiary or executor
  • divorce: their own or a beneficiary
  • the acquisition or disposal of an asset
  • insolvency: their own or a beneficiary
  • a change to superannuation or taxation laws
  • otherwise: once every five years

Often a Will won’t require change when one of these events occurs, but it’s critical you at least consider the need so that you don’t miss a critical event that does require a change.

A few tips to keep in mind:

  1. Marriage annuls an existing Will. Marry or remarry and you have no Will UNLESS your Will expressly states it was drawn up in contemplation of marriage.
  2. Separation does not change a Will. So if you die in that time between separation and divorce (a minimum of 12 months) your existing Will continues to operate and is likely to leave everything to your ex.
  3. Having no Will creates uncertainty and causes delay and additional unnecessary expense in the administration of your estate.
  4. Having an out-of-date Will can create just as many delays, costs and family disharmony as having no Will at all.

Wills are inexpensive?  No.  

But even if you have to pay for something more costly than a basic Will, the money paid is likely to be the cheapest investment you have made. 


The information in this article should be considered general in nature and legal advice should be sought. This information has been provided by Rod Cunich, author of Understanding wills and estate planning.  Rod can be contacted via his site, where you can learn much more, and also buy a copy of his book.

Related Link:  Your Life Choices

Related articles:
Do your debts die with you?
New relationship, new will
Superannuation and life insurance



Managing Family and Family Business Dynamics

Family business combines two conflicting value systems. Managing the overlap and ensuring that everyone knows ‘the rules of the game’ is the key to harnessing the power and the passion that the family brings to the world of business.  This overview introduces a process for establishing a set of rules for a family to follow*.

A documented family charter outlines strategies and solutions which can be implemented to deal with family-related matters that impact on business issues.

Family Constitutions include criteria for becoming part of the family business, a definition of roles and responsibilities of active (i.e. those family members employed in the business) and passive (i.e. those not employed in the business) family members, and mechanisms to be adopted for the transfer of ownership and leadership.

A Family Charter is a document which specifies the relationship between the family and the business, and sets out guidelines for resolution of issues and how the business is to be managed. It reflects family and business values, and formalises the procedures and relationships between family members and the business.

The Charter is geared towards maintaining harmony and co-operation, and preventing conflicts.

While this might not seem important in the early stages of a growing business such as in the two person family business with one or two employees, it is critical in multiple generation enterprises where patterns of relationships are more complex.

A Family Business Charter, like a business plan, is a working document which provides guidelines for ways in which the family will deal with the interface between the family and the business.

There are many matters that can be covered in a Family Business Charter. Listed below are a number of questions that can be considered when developing a framework around which the Charter can be formulated.

Family mission and long-term goals:

  • How important is continuation of the family enterprise?
  • What is the current and future management philosophy?
  • What are the short-term and long-term objectives of the family?
  • What does the family plan to do with the enterprise in the long-term ie keep it in the family? Sell it?
  • What family values do you want the business to exhibit?

Share ownership

  • What criteria entitle an individual to own voting or non-voting shares in the business?
  • In the event of critical milestones such as marriage, birth, death, divorce, or termination of employment are ownership privileges affected?
  • Under what conditions, including price and terms, must shares be offered for sale to other shareholders or to the firm?
  • What constitutes a fair distribution of assets among family members and what is best for the success of the business?
  • Should key non-family employees hold shares?
  • What restriction should be placed on sale or transfer of shares?
  • What type of shares control (e.g. voting) should be made available for family members who are active (i.e. those employed in the firm) in the business versus those who are passive (i.e. those family members who are not employed in the enterprise)?


  • Should members be renumerated above, at, or below market rates?
  • Should all family members be compensated at the same rate, regardless of their contribution to the business?
  • Is there a fair and objective compensation system for family members?
  • Are employment perks equitably awarded?
  • Should active family business members receive higher dividends than passive members?


  • What are the policies regarding joining the business? At one end of the spectrum, membership is open regardless of talent or skill levels. At the other end, families specify high entry standards. Whatever the position adopted, it is important to be clear about who can enter, what their qualifications must be, and what it takes to remain in the business.
  • How do family members earn their stripes?
  • Is employment a birthright or a privilege?
  • Under what terms and conditions will a family member be employed (or for that matter be terminated from active work in the business)?
  • Who makes the employment decision when family members join or are asked to leave the business?
  • Should family members obtain experience outside of the firm before joining?

Career opportunity

  • Should career opportunities be made available to all family members with ability and commitment?
  • Are family members who do not meet employment criteria counselled accordingly? What career opportunities or alternatives are available for these individuals?


  • Will future managers come exclusively from the family?
  • When will the firm’s future managers be selected and by whom?
  • What qualities are essential in future leaders of the business?

*  The initial body of this article was provided to me anonymously.  If you where party to preparing the initial text please let me know so that I can give credit.

Trusts: who benefits from them and how ?

Although not technically accurate, it’s convenient if we view a trust as a ‘legal entity’.  Just like a human or a company, a trust can own assets, has rights and obligations, can sue and be sued. There are many types of trust, each designed for a particular business, investment, asset protection and/or taxation purpose.

So, what is a trust?  Commonly, they involve a written agreement (trust deed) by which a person (the settlor) provides money or property (trust assets) to a person or company (the trustee) who agrees to hold the trust asset for the benefit of the others (the beneficiaries).

Some trust deeds nominate a person to remove and replace the trustee (the appointor).  The appointor is often considered the 'ultimate controller' of a trust because, although the trustee manages the business and affairs of the trust, the appointor can determine who acts as trustee.  You can imagine that if an appointor wasn’t happy with the way a trustee was managing the trust, the appointor would replace the trustee with another one.

So how can you 'picture' a trust set up?  it looks a lot like this:

Family Trusts
The most common type of trust is called a ‘family trust’ or a ‘discretionary trust’.  This type of trust is used to operate businesses or simply hold investments, such as properties or shares. The beneficiaries include a broad range of family members, such as grandparents, uncles, aunts, cousins, parents, siblings and children.  But there are three unique feature of this type of trust

  • First - no beneficiary has any right to any part of the trust assets. Each financial year the trustee determines who will receive a distribution. The trustee has an unfettered right to determine who receives and who doesn’t – thus why it’s referred to as a ‘discretionary trust’. There are many variations of this type of trust, as each is tailored to suit the circumstances of the person who created it.
  • Second - The power of an appointor to remove and replace the trustee is not 'property' for the purpose of the bankruptcy act, so, as a general rule, even if the appointor becomes bankrupt the appointor can continue to determine who controls the trust and it assets without interference for a trustee in bankruptcy.  As you can imagine this issue can (and does) become very complex if contested so extra special care is required if a motive for using a discretionary trust si asset protection.
  • Third - The trustee can stream trust income to adult beneficiaries who have a low marginal rate of tax or to company beneficiaries to minimise the overall tax rate being paid on trust income.

Why use them?
There are asset protection and taxation benefits provided by a discretionary trust that are not available to individuals, companies or other types of trust. They also enable the passing of control of assets from one generation to the next without triggering transfer costs or the payment of taxation (no advelorum stamp duty or CGT).  Details of these benefits are a little too complex to deal with in this article but, believe me, they are worth investigating.

Capital Protected Trusts
Another common form of trust is one where the trustee manages assets for the benefit of a beneficiary who is not capable of managing their own affairs because they:

  • suffer a severe mental disability, or
  • are dependent on drugs, alcohol or gambling, or
  • are exposed to the undue influence of someone who will exploit their vulnerability, or
  • for any other reason they can't manage tgheir own affairs, or
  • the person who establ;ishes the trust wants the capital to be preserved for future generates.

Again there are many variations of this type of trust, with some providing an income stream to the beneficiary while others permit the trustee to provide housing and other benefits. Some are designed specifically for severally disabled beneficiaries and enable them to benefit from trust assets and income without being disadvantaged by the application of Centrelink means testing.

Why use a capital protected trust?
In this case

  • it’s to ensure a vulnerable beneficiary receives appropriate financial support and other support without risking the capital in their hands, and/or
  • it's to provide financial assistance to a person or family, but preserve the capital for future generations.

Other Trusts
There are other forms of trust – such as unit trusts and hybrid trusts, which are designed for specialised business purposes – but they are less common so I haven’t dealt with them in this article.

The Pros and Cons
Trusts are ‘tools’ designed to protect assets and/or minimise taxation, among other functions. If used appropriately, they can provide enormous benefits. However, as with all tools, if they are mishandled they can cause more harm than good. If you wish to create a trust, it is critical that you obtain expert advice to determine the best option for your circumstances. Equally important is to regularly check in with your advisor to ensure that you are operating the trust correctly – it is easy to undo a well-devised trust by not following the relevant legal, accounting and taxation rules. 

Lastly, assets held in trust do not form part of your estate when you pass away. This makes trusts a valuable estate planning tool, however, again management of this feature of a trust requires careful attention to ensure trust assets end up in the control of the appropriate person when you pass on. A simple issue to address, but one that is often overlooked – to the detriment of families.

The information in this article should be considered general in nature only and not relied upon. Legal advice should be sought. This information has been provided by Rod Cunich, author of Understanding wills and estate planning.  Rod can be contacted via his site, where you can learn much more, and also buy a copy of his book.

Related articles written by Rod for YourLifeChoices:
Can your will be challenged?
Do your debts die with you?
The right time to write a will

Buy-Sell Agreements - A Brief Overview

What is a Buy Sell Agreement?

A Buy Sell Agreement is a legal agreement between the owners of a business that obliges an owner to sell their interest in the business to the other owner(s), and for the other owner(s) to buy that interest, in certain circumstances – hence the name “Buy Sell Agreement”.

Typically, the buy sell obligations of the owners will be triggered if one of them dies or is prevented from working in the business because of a serious injury or illness. In that sense, a Buy Sell Agreement is rather like a Will for a business.

A Buy Sell Agreement doesn't usually deal with other situations where an owner no longer wishes to be involved in a business, such as resignation or retirement.  Commonly these departures are dealt with in a separate agreement.

Usually, a Buy Sell Agreement will identify the method of funding the buy sell obligations of the owners.

How is a Buy Sell Agreement set up?

A well prepared Buy Sell Agreement will involve a range of professionals working together such as your accountant, financial advisor, insurance advisor and lawyer.

The steps involved in setting up a Buy Sell Agreement basically::

1.   The owners of a business negotiate and agree on:

·       how their interests in the business will be valued,

·       the events that will trigger the buy sell obligations of the owners, and

·       how their respective buy sell obligations will be satisfied.

2.   A funding plan is established to provide the cash to satisfy the financial obligations of the business owners if any of the trigger events occur.

3.   The legal documentation is prepared.

How is a Buy Sell Agreement funded?

Insurance is generally the most cost effective funding mechanism to fund a Buy Sell Agreement, at least for those trigger events that can be covered by insurance (eg death, total and permanent disability and trauma).

If the amount of insurance cover is less than the agreed purchase price for an owner’s interest in the business, the buy sell obligations of the owners will need to be funded from other sources, such as:

·       the business bank account

·       the sale of business assets

·       a bank loan

·       a business owner’s personal savings

Depending on how they are funded, Buy Sell Agreements can raise a range of commercial, legal, accounting and tax issues and it is essential that you obtain professional advice on these issues before entering into one.

Important Information

A Buy Sell Agreement is, by nature, a complex arrangement. If you decide that a Buy Sell Agreement is suitable for you, you will need to consider many commercial, legal, insurance, accounting and tax issues before you establish the arrangement. Your financial adviser can assist you to identify your business needs and the appropriate amount and type of insurance to purchase but cannot advise you on all the other aspects of establishing a Buy Sell Agreement. For all those other aspects you will need to seek appropriate expert advice from legal, accounting, tax and other professionals to determine how best to structure the arrangement.

Read More

How To Survive The Loss Of Your Business Colleague


Whenever people come together in a business venture it is because they have complimentary skills,  knowledge or experience, or because of financial considerations.

Their primary objectives are to make a profit and build an asset they can share.

If you are unlucky enough to lose a business colleague - through death, disablement or simply because he or she wishes to start a new venture, this could have a disastrous financial result for your business, for you and your family.

Have you thought what would happen to you personally if you were to lose a business colleague?

(a)       Your colleague's interest in the business

Usually, you will have to find the money to pay out your colleague's interest in the business.  It will also require a complete re-organisation of the business.

Will you be able to find someone else to buy into the business?  Will you be able to borrow the money?  What is the business worth anyway?

How will your business survive this financial strain?

(b)       Future profitability

With one key person no longer helping to produce profits for the business, its long term future profitability is thrown into question.  Will the bank call up any loan facility?  Will your clients buy from competitors?  Will your employees get restless and leave?  Will your suppliers continue with credit arrangements?

Unless you manage to restructure your business effectively and quickly, you may find that you have to sell out at whatever price you can get for the business and suffer the financial consequences.

But there is a better way - a BUSINESS CONTINUATION PLAN can provide the cash funds to enable you to:

  1. Buy out your business colleague's interest at a predetermined fair price.
  2. Pay out all the debts on the business.
  3. Maintain profitability of the business for a period of time until you can find a new business colleague or until you otherwise restructure your operation.

There are two main components to a BUSINESS CONTINUATION PLAN.


All the documentation you need to establish the plan can be arranged.  This documentation may include:

  •  A Buy-Sell Agreement - this enables you to buy out your business colleague's interest if they die or become permanently and totally disabled.
  • The Agreement will also enable you to fix the price at which the business interest will change hands.
  • Board Minutes - evidencing your desire to set up the Plan.
  • Legal and Taxation Notes - which explain the technical laws which govern the operation of the Plan and the rights and obligations of all parties. 


Because a Buy-Sell Agreement is a legally binding contract, it results in a legal obligation for monies to be paid should an event occur which is the subject of the Agreement.  Therefore, you need to arrange for the payment of the amount nominated in the Agreement.  Additional sums may also be required to pay out any debts owed by the business or to fund a replacement person in a key role in the business.  The three main ways of funding this are:

  • from your own personal savings
  • by borrowing the funds
  • from the proceeds of a life insurance policy, total & permanent disability policy (TPD) and/or trauma policy - where your colleague's departure from the business is a result of death, disability or a serious health event and their departure is an Involuntary Departure

Whilst any one of these funding methods may apply in any given situation, the usual way of making provision for payment of the monies where there is an Involuntary Departure is by the use of insurance.


A similar financial loss can be incurred by a business if that business loses a key employee rather than the principal.  Again life insurance can be used to protect a business against this situation.


Visit my website at the following link to see how a Buy - Sell Agreement Works: CLICK   HERE


Buy-Sell Agreements are limited to funding a departure from the business which arises due to an event that can be covered by insurance - not departures that occur because your business colleague wishes to retire or leave the business for any other reason - a Voluntary Departure.

Voluntary Departures are often dealt with in a separate agreement.  These agreements often also specify how the business colleagues wish to operate their business and regulate their relationship as business operators and owners. One such agreement is a Shareholders Agreement.  I will in coming weeks post a blog dealing with these issues.