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Similar to Blended Families - Does my business need a will
Similar to Blended Families - Does my business need a will (20)
Blended Families - Does my business need a will
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> ESTATE PLANNING > SELF MANAGED SUPER FUNDS > BUSINESS STRUCTURES > TAXATION > COMMERCIAL > FAMILY LAW
Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
Blended Families: Does my business
need a will?
Steven Grant LLM, LLB, F FIN, CTA
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First recorded unprepared
heir
The Prodigal Son
Acknowledgement - ©2014 The Williams Group All Rights Reserved.
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Acknowledgement - ©2014 The Williams Group All Rights Reserved.
Blended distrust
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Fixes
Acknowledgement - ©2014 The Williams Group All Rights Reserved.
“I have been writing estate plans and
trusts for many years and have
learned that I cannot write an estate
plan that ‘fixes’ your kids . . .”
– Nancy Henderson, Attorney at Law
STEP LA, May 2009
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• Mark re-marries Amelia who has two
children from a pervious marriage David
(21) and Brian (19).
• Amy and Mark directors.
• David works in the business.
• Amy is a stay-at-home mum.
Sarah & Mark + Amelia
David Brian
Mark
Steel Pty Ltd
AmeliaSarah
50% 50%
FrankAmy
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Mark Dies
Mark’s will gifts his shares
to Amelia.
Steel Pty Ltd
AmeliaSarah
50% 50%
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The Issue
Neither Sarah nor Amelia
have 50+%.
Amy only continuing director
Steel Pty Ltd
AmeliaSarah
50% 50%
Amy - director
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The Issue
• Amy increases her salary because she is now sole director
• Suspends dividend payments
• Sarah and Amelia need income
• Sarah and Amelia cannot agree on a replacement director or who
will run the business
•
David only person who can operate business – will resign unless
dividend to Amelia continues
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Common Issue
Tyres Pty Ltd
John
Admin and
Marketing
Bob
Operations
50% 50%
• Both directors
• Both work in the business
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Bob Dies
Tyres Pty Ltd
John
Sole Director
Bob’s wife
50% 50%
• John refuses to offer Bob’s wife a job or allow her to be a director
• John promotes his son to Operations Manager
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Solution – business will
Plan made before death
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Fexuto Pty Ltd v Bosnjak
Facts
• Bob and his brothers were shareholders in a holding company that
operated Westbus Group (the largest private bus company in Australia).
• Bob held 28% of the shares and his brothers held the remainder.
• Bob was increasingly alienated from the decision-making.
(2001) NSWCA 97
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Held
• Bob did not have a right to veto decisions of the company
• The majority shareholders actions as a total were held oppressive,
therefore Bob was entitled to require the majority to buy his
shareholding at value.
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Shamsallah Holdings
Owen J in Shamsallah Holdings v CBD Refrigeration and Air Conditioning
Services [2011] WASC 8, held that the directors actions in paying
themselves excessive remuneration while restricting the payment of
dividends (which had been paid for a number of years prior) was
oppressive conduct.
“If the salaries are unjustifiable then it can be seen as an element of
unfairness and ripping off the company and shareholders.” [30]
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Hancock v Rinehart
Family
Lang
Gina Rinehart Frank Rinehart
Greg Milton
(Hayward)
Bianca John Hope Ginia
Daughter
Hancock v Rinehart [2015] NSWSC 646
Hope
First husband Second husband
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• Lang Hancock was the trustee of the Hope Margaret Hancock Trust
(“the Trust”).
• Cl. 5 – Income was to be used for ‘the education, advancement and
benefit of the children of Mrs. Rinehart’.
• Cl.6 - The trust was to vest on the date on which the youngest of Mrs.
Rinehart’s surviving children attained the age of 25.
• Mrs. Rinehart became trustee of the trust on the death of Lang Hancock
in March 1992.
• The trust is estimated to be worth $5 billion.
Background
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Facts
• Mrs. Reinhart amended the Trust to limit the beneficiaries to her
‘immediate bloodline’.
• Three days before the trust was set to vest Mrs. Rinehart wrongly
informed the beneficiaries that if the property was to vest they would
need to pay CGT of $142 million, a value that would bankrupt them.
• Mrs. Reinhart amended cl. 6 extending the vesting day until 2068
pressuring the beneficiaries to agree so they would avoid CGT tax and
bankruptcy.
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Plaintiff’s Claim
• The Trust be reinstated to the original terms.
• Sought an order removing Mrs. Rinehart as the trustee.
• That the Court appoint Bianca as trustee.
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• Given the risk of matrimonial litigation in the event of a marriage
breakdown, the first amendment was consistent with avoiding any risk
of triggering a change of control and did not indicate any ulterior
purpose - held binding [103].
• The Court gave weight to Mrs. Rinehart’s desire to keep the trust
monies in the family, and considered the variation appropriate in the
circumstances.
Held
Narrowing beneficiaries
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Held
• Was not determined because Gina vested the Trust on 30 April 2012
Extend vesting date
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Held
The court has the power to appoint a new trustee upon application to the
court “whenever it is expedient to do so.” The court is to consider amongst
other things:
• The wishes of the testator, express or implied.
• The trustee should not have a view of promoting the interests of
beneficiaries in opposition to the wishes of the testator.
• Whether the appointment would promote of impede the execution of the
trust.
• Welfare of the beneficiaries.
New Trustee
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Held
Mrs. Reinhart argued that a licensed trustee company be appointed, while
the plaintiff’s submitted Bianca be appointed.
The proposed trustee companies did not provide adequate assurance of
independence from the ability to resist the influence of Mrs Rinehart and
there was potential for Mrs Reinhart to acquire influence.
On the facts of this case, the trust instrument was interpreted as a desire to
keep the trust in the family. Bianca as a trustee was desired by at least two
of the beneficiaries.
Bianca was appointed
New Trustee
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Hitchcock v. Pratt
• Deceased died in 2009, resided in Victoria
• Survived by wife, the executrix
• Hitchcock had a relationship with the deceased and had an ex nuptial
child, Paula
• Hitchcock and Paula bought a Family Provision claim under the
Succession Act 2006 (NSW)
• Sought notional estate order
Facts:
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Facts
• Deceased owned no real estate in New South Wales
• Four properties in New South Wales owned by companies controlled by
a Trust where:
• Deceased, his wife and Hitchcock were not beneficiaries
• Deceased was a director of the company that owned the property
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Wife’s Application
• Executrix applied for summary dismissal of proceeding:
• No relevant property transaction – s75(1)
• Not a beneficiary – s 83(1)
• Exceeded constitutional power, could not apply to property outside of NSW
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Decision
• Brereton J summarily dismissed the proceedings
• Being a director under s76(2)(a) was not enough because fiduciary duties
owed to shareholders and deceased not a shareholder therefore no relevant
property transaction within s75(1)
• In respect of control of the Trust – as deceased or applicant not a
beneficiary, therefore s83(1) could not be satisfied
• (Above as no doubt the result of some careful estate planning advice)
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Jurisdiction
• Act could only have jurisdiction
• non NSW resident if movable property in NSW
• No jurisdiction to non NSW immovable property if person was a non resident
• Hitchcock & Anor. v. Pratt [2010] NSWSC 1508
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Pratt No 2
• This time claim in Contract
• Deceased made promises
• Leave escort industry in 2003
• Become non exclusive mistress
• In exchange
• $500,000 per annum
• Accommodation
• Trust fund for children
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Defences
• Certainty
• Intention to create legal relations and social and domestic arrangement
• Could deceased enforce bargain, i.e. Claimant not return to escort
business
• Contract void public policy
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Other Issues
• Estoppel
• Accord and satisfaction and earlier release
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Judgment
• Uncertain
• Void public policy
• Estoppel failed, no detriment
• Also had been accord and satisfaction
Ashton v. Pratt (No 2) [2012] NSWSC3
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• Plan for every contingency
• Loss of control
• Cost – duty, tax and maintenance
• Will it work
Planning
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No Plan
• Failing to plan for the death/incapacity of the business owner will often
give rise to litigation, more-so in blended families.
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Tools For Business Succession
Plan will include:
1. Shareholder/Unitholder/Governance Agreements
2. Family Law
3. Trust
4. EPA and Guardianship
5. Super
6. Causes
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1. Governance Agreements
• Agreement
• Constitution
• Pre-emption
• “Beirat” or Family Agreement
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Beirats/Family Agreements
• Popular in Germany
• 90% of SME have a Beirat on death of Principal
• Australian equivalent combination of an advisory board and family
constitution
• Becoming more popular here
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Typical Beirat
• Board
• “advisory board” become “the board”
• Lock in Period
• Board cannot be altered for 2 years from death
• Shares, business or control of same cannot be sold for 2 years from death
• Board to consider in the 2 years whether a family member has ability to run
business
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Document
• Agreement between family members
• Integrates with the constitution or trust deed
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Advisory “Board”
• Accountant, lawyer, banker, industry expert, independents
• Capacity is not that of a formal director, do not make decisions
• Deep knowledge of structure, finance and operations
• Not to govern until death
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Why Two Years?
• During uncertain period to provide some stability
• Emotional time for family
• Independent review of business
• Independent review of family, possibility of succession of control. If not
ready the business for sale
• Convert active assets to passive income stream for family
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Why?
• Second, third, plus generational businesses
• Large bedding company
• Started by grandfather
• Seeded to two sons of five children
• One son four children, the other five
• Nine cousins
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Bedding Example
• Family constitution
• MD appointed on ability (currently a family member)
• Each family member has a ‘right to a job’ but based on qualification and
ability
• Independent board, family board disbanded
• Moving to a corporate model and ultimately public offering
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Hotel
• Pub is an icon, income good but limited
• Father started, passed away
• Mum still alive, in her 90s in a home
• Six children, four have predeceased their mother
• Predeceased children left dependant spouses and children
• Two children operate the hotel
• On mum’s death, who will control and what of dependant spouses and
grandchildren
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Naive Children
• Father ran two children’s life
• Father died, left the children in control
• Children not qualified, no experience, unaware of litigation, unaware of
value of estate
• No succession of control
• Uncertainty and raw emotion from death generate bad blood
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Naive Children
• Advisory Board
• Board could have assessed children, been aware of the business and
litigation
• Board resolve litigation, sell business and divide and put in place passive
income stream for children in independent hands
- 46. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
2. Family Law
• Financial Agreements
• Stephen Burke from Certus Law will cover in Session 4.
• ‘Intact’ Stanford type applications – Polik v. Polik
• Adjournment
• Spousal maintenance
• Interim orders
• Injunctions
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Polik v. Polik [2012] FamCA 335
• Application by husband in an ‘intact’ marriage
• Devout Catholics
• Had a troubled marriage
• Husband the steward of a large family business, run for benefit of
parents, siblings, their children
• Husband wanted a BFA wife declined
• Sought s79 adjustment
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‘To Save the Marriage’
• Seeking orders to ‘save the marriage’
• Might be a way to force business succession
• s78 declaration or s79 adjustment
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Polik Scenario
• Parties to second marriage happy and intact
• Husband 20 years older than wife
• Husband retiring from business, wanted his wealth to pass to adult
daughter from the first marriage
• Business value of in excess of $50 million
• Wife wanted to take sole control and expand, wanted that to pass to her
children
• Complicated corporate structure
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Polik Scenario
• Restructure to achieve husband’s and wife’s goals had significant:
• Duty
• Income tax
• CGT
• If s79 order made then:
• Certainty
• No duty (conflict between s90 of the Family Law Act and some State Duty
Acts – for example Qld s420(1) Duties Act 2001)
• No CGT
- 51. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
3. Trusts
• Contingency
• Dwyer v. Ross (1992) 34 FCR 463
• Richstar v. Carey [2006] FCA 814
• Control
• Inter vivos
• Sub trusts, trust splitting
• New trusts
• Amending trusts or settling new trusts to overcome notional estate –
Hitchcock v. Pratt [2010] NSWSC 1508
• Leave to Matthew Burgess – Session 10.
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Montevento Holdings
(2012) HCA 48
Facts:
• The trust deed stated “if and so long as any individual appointer is a
beneficiary that individual shall not be eligible to be appointed as a
trustee.”
Beneficiaries
Discretionary Trust
Beneficiary appointed
his company as trustee
of the discretionary trust.
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Appointor:
Dad Mum One son
Held:
• an individual is distinct from a company even when that individual is the
sole shareholder and director.
• the appointment was valid.
Montevento Holdings
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Mercanti v Mercanti [2015] WASC 297
Facts – The case concerned the validity of deeds of variation for two
discretionary trusts. The existing appointer Michael was replaced with his
son Tyrone.
The MMF trust amendment power allowed the trustee to “vary all or any of
the trusts terms and conditions” –
Held - The variation was valid.
The FW trust amendment power only allowed the trustee to “vary all or any
of the trusts” –
Held - The word ‘trusts’ did not extend to the appointment clause and
the variation was invalid.
Mercanti v. Mercanti
- 55. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
Father planning
80
cancer
79
Mum (starting to
lose it)
Ran business
with sister’s
husband
Uncertainty Hippie Disabled
Many grandchildren
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Father Succession
Appointor
Company
Family Trust
(pre CGT)
Business $20 million +
100%
Shares
1970s deed
(father)
Significant issue with the Trust Deed
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Plan
Mum
Super
Disabled
Daughter
Company
Family Trust
1 2 3 1 2 1 2 1 2
Appointor
Daughter
Appointor
Daughter
Appointor
Daughter
Appointor
Son
- 58. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
Family Agreement
• Executed by all entities and controllers
• Father’s estate nominal
• 3/9ths of business income plus 1/4 of all other income to son
• 2/9ths plus 1/4 to daughters
• Father and son to manage, then son day to day
• Decision-making, disputes and exit all dealt with in an Agreement
- 59. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
Good Trustee
• diligent
• unbiased
• sensitive
• wise investor
• forecast the future
• psychologist
• family mediator
• value fees
• knows family well
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Good Trustee
However if found
• Relatively simple discretionary trust will provide:
• flexibility
• protection
• will not be alter ego
• will not be property
• good tax outcome
• relatively cheap to administer
• wise counsel
- 61. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
Even With a Good Trustee
NB
• It will be a loss of control to the spouse or children
• Need to be checks and balances
• A Trust is my preferred succession structure
- 62. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
4. EPA and Guardianship
• Individuals
• Companies
• Power of attorney
• Trustees
• Delegation
• Leave to Robert Monahan – Session 6 this afternoon
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5. Super
• Important
• Covered by Angela Cornford-Scott in Session 5 and Scott Hay-Bartlem
in Session 7.
- 64. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
6. Causes
Anticipate:
• unconscionable conduct and proprietary estoppel
• constructive trusts and joint endeavour claim
• statutory will application
- 65. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
Nolan v. Nolan [2014] QSC 218
• Tony oldest of six children
• Family operation
• Donna sought adjustment in respect of Brian’s and Majella’s property
Brian Majella
Tony Donna
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Donna
• Brought claim in
• estoppel
• joint endeavour
• Estoppel failed, promise not certain.
• Joint endeavour succeeded
• Trust declaration made
- 67. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
GAU v. GAV [2014] QCA 308
• Statutory will application
• Conflict with FLA?
• Trust declaration made
• Daughter-in-law and son separated
Dad Mum
SonDaughter-in-law
Married 17 years
- 68. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
Issue
• Existing asset pool was $1 - $1.2M
• Father applied to alter mum’s will to establish
testamentary trust for son and grandchildren
Mum
Son
$6M
assets to
son
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• Difficult to anticipate all claims against what might be bought if there is
a conflict between family members
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• None of us choose our parents but functioning adults can choose
whether or not they have children
• ‘The price the deceased paid for passing his assets tax free to his
nominated beneficiaries was acceptance of the statutory duty’ to make
adequate provision for all his claimants
(Mead v. Lemon [2015] WASC 7)
Don’t Plan
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Mead v. Lemon
Michael Wright
DOD 2012 74 yrs
First Wife
Divorced
Daughter – 2nd defendant
1971
Daughter – 3rd defendant
1973
Son - deceased
Second Wife
Divorced
Third Wife
Divorced
No children
No children
Elizabeth Mead
Fourth Wife - Mary
Married 1997
No children
Applicant
Olivia Mead
1995
- 72. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
Mead v. Lemon
Applicant
Olivia Mead
1995
Defendant 1
Executor
Lemon
Defendant 2
Daughter
Defendant 3
Daughter
(residuary beneficiary)
- 73. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
• $800 million to $1 billion
• Executor distributed all of estate bar $45M
• (His Honour not happy – no court approval sought)
Size of the Estate
- 74. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
• 19 years old
• left $3M in a trust
• ‘a real prospect it will never vest’
Ms Mead
- 75. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
Claim by Ms Mead
• A ‘cozy’ house worth $2.5 million,
• ‘Fashion accessories’ worth $298,400,
• A diamond-encrusted bass guitar worth $250,000,
• A $1.53 million crystal-covered grand piano,
• An Audi A4 and a Toyota Tarago van for when she has children,
• A $100,000 wedding,
• $40,000 a year for holidays,
• $150 a week for wine,
• $20,000 each year to keep a dog, a rabbit, a ferret and a Mexican
walking fish,
• Five pairs of shoes valued at $5,000 every year and 20 pairs valued at
$300 every year for the rest of her life.
- 76. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
Claim
• totalled $25 million
• reduced by His Honour during the hearing to $12 million
• His Honour then awarded $25 million
• beware executors who do not respect the process and court
- 77. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
Executor
• had distributed bulk of the estate
• not applied to the court for a direction in this regard *
• appointed a new trustee to ‘Ms Mead’s Trust’ without consultation with
her
• other admissions, undertaking and payments highlighted the
uncertainty surrounding the Trust
*s96 Trusts Act 1973 (Qld), s92 Trustees Act 1962 (WA)
- 78. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
The Succession Plan Design Matrix
The business
and asset
structures and
tax
considerations
Management
interests of
family and
non-family
The business
and asset
holding
interest
Your
personal and
family goals
and
objectives
The business
and asset
succession
plan
Acknowledgement - ©2015 Peter Bobbin.
- 79. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
No Plan
Acknowledgement - ©2015 Peter Bobbin.
- 80. Liability Limited by a Scheme approved under Professional Standards Legislation. © 2015 Merthyr Law.
Questions