Australia: Building blocks of estate planning: asset protection

Last Updated: 24 May 2014

Snakes and ladders: protecting your nest egg while you are alive and after you are dead


This paper considers the concept of asset protection in the context of protecting one's nest egg, both before and after death. Specifically, this paper outlines a number of tools you may wish to consider to either create or increase certainty that your assets benefit only those that you intended, and are protected from the rest!

When considering how best to protect your nest egg, you must first ask the following two important questions:

  1. What have I got?
  2. From whom do I want to protect it?
  1. What have I got?

In the context of estate planning, it is important to understand what exactly you are trying to plan. Think about the assets you have and the structures that hold them. Are all of your assets in your personal name? Do you have a company or companies, trusts (discretionary, unit or superannuation) or are you a partner in a partnership? A similar line of questioning applies to the succession of ownership of these assets. What is the nature of the ownership? Who currently owns those ownership interests? Who should own those interests in the future? When should the ownership change occur and how should those ownership interests be passed on?

It is important to understand what your existing structure is to determine firstly whether this structure is the most appropriate structure for you right now, and secondly how this structure lends itself to you achieving your estate planning wishes. Having identified the "what", "who" and "when", the estate planning process will then be a matter of determining the most appropriate "how" to achieve the succession objectives.

  1. From whom do I want to protect it?

Most people only ever intend to benefit their personal/immediate families, often subject to conditions. However, due to somewhat lazy drafting, it is common for discretionary and testamentary trusts to include classes of potential beneficiaries that embrace estranged spouses, children's spouses, second cousins and great uncles of dubious intention.

2.1 Blended families

With Australia's current divorce rate of approximately 40%, blended families are common in our society.

Typically in a blended family, one or both spouses have children from a previous relationship. Often in these circumstances, parents want to ensure that children from earlier relationships receive an adequate share of their deceased estates.

In order to achieve their wishes, spouses in blended families should consider such matters as how property is owned and whether to have what are known as mutual Wills or mirror Wills.

2.2 Separation and divorce

When you have separated from your spouse, it is highly unlikely that you still wish him or her to benefit from your estate or to make decisions on your behalf if you are no longer able to make your own decisions due to lack of mental capacity.

It is important to understand that your estranged spouse is still your main beneficiary if no Will has been put into place and the law of intestacy applies.

In many cases, there will be a Will in place under which one spouse has nominated the other as sole beneficiary. There might also be other documents in place that give your estranged spouse control over your assets or your life (for example an Enduring Power of Attorney or Appointment of Enduring Guardian), which should be amended if you no longer wish your estranged spouse to have such powers.

A divorce revokes provisions under a Will in favour of your former spouse (whether as a beneficiary or executor). This might mean that your Will may no longer deal with the whole of your estate and the law of intestacy may determine the distribution of the remainder of your estate.

A divorce does not automatically revoke an Enduring Power of Attorney or Appointment of Enduring Guardian. These documents must be expressly revoked.

2.3 Creditors

It is commonplace for people to approach asset protection through ensuring assets are not held in their personal names. This may involve putting assets in the name of the 'not-at-risk' spouse or a family trust.

Under the Bankruptcy Act there is a four year claw back where the most common form of asset protection is adopted – gifts to family members or a family trust. Accordingly, the time to act to achieve wealth preservation is now – some actions started today will simply not be effective until the four year anniversary; only then might a level of asset preservation exist!

Perhaps the most significant of the Bankruptcy Act principles are those that involve how the family money is spent. Assets held by a spouse but financially supported or developed by the financially troubled partner who enjoys use of the asset are exposed. This is where new thinking of old ways needs to be applied. It can be as simple as managing family spending so as to ensure that life's consumables are paid for by the at-risk partner and the income or investment earnings of the not-at-risk partner are applied to the house purchase or renovations.

Considering such issues, Cummins case involved the High Court in deciding whether half the Hunters Hill waterfront home wholly in the name of Mrs Cummins, wife of Queen's Counsel barrister Mr Cummins, was accessible to his Bankruptcy Trustee. The largest creditor by far in his bankruptcy was the Australian Taxation Office. Before lodging in 2000, Mr Cummins had not lodged any income tax returns since about 1955.

The conclusion of the High Court? No longer is the family home safe when held by the not-at-risk partner.

The most important conclusion of the High Court arising from its decision in Cummins case was to the effect that no matter whose name the family home is held in, unless there is good evidence to the contrary, it is held for both parties to the marriage. Thus, on the financial failure of one of them, if the home is in the name of the not-at-risk partner, their Bankruptcy Trustee has access to half of it.

The family home is for many the most valuable asset they will ever hold in their lifetime. What is important for wealth preservation of it is whether there is good evidence to the contrary that the home is for both marriage partners, even if only in the name of one of them.

In terms of the family home being owned by a family discretionary trust, how the family discretionary trust can fail as a wealth preservation strategy is the subject of Richstar Enterprises, a single judge decision of the Federal Court of Western Australia. Justice French, in a decision involving Norm Carey and Mr Beck of the Westpoint Property and Finance Group, resolved that because the trustee of the particular family discretionary trust was effectively the alter ego of the relevant beneficiary or otherwise subject to his or its effective control, that beneficiary had at least a contingent interest within the meaning of that term as used in the definition of 'property' in section 9 of the Corporations Act.

This is important for those whose main wealth preservation strategy relies on a family discretionary trust. Surprise should not be levied at this decision, in many ways it is common sense and is quite respectful of the centuries old laws of trust. In effect Justice French said that if the trust is simply a device, if the truth is that it is really the bankrupt person in another financial guise, then it will be treated as such.

2.4 Superannuation and bankruptcy

It is a common misconception that superannuation is safe and secure in bankruptcy. Whilst this is in part correct, superannuation is not necessarily protected from creditors pre-bankruptcy.

In summary, the current state of security of superannuation from a trustee in bankruptcy is:

  1. The total standing to the credit of the superannuant is protected if a member is bankrupt;
  2. Any amount withdrawn and paid during bankruptcy in a lump sum (not pension form) is also protected;
  3. Whatever is acquired by the bankrupt with a withdrawn amount during bankruptcy is protected;
  4. Contributions to superannuation with the intent to defeat creditors are void as against the trustee in bankruptcy;
  5. A main intent of defeating creditors can be found in a contribution that was made when the person was about to become insolvent. Assessing whether the contribution was out of character with a pattern of making contributions will indicate a main intent of defeating creditor interests.
  6. Any clause in a superannuation fund trust deed that seeks to disentitle a member to any interest they have in the fund in consequence of an act of insolvency by them is void as against the trustee in bankruptcy.

It is this level of 'protection' of superannuation that has created the perception of it being a safe and secure asset or investment strategy. To the extent of a bankruptcy the perception is correct, but superannuation is not necessarily safe in a pre-bankruptcy scenario.

It is beyond the scope of this paper to provide an in-depth analysis of the availability of superannuation to creditors pre-bankruptcy. However, it is noted that the ATO has expressly recognised the exposure of a person's superannuation toward the payment of taxation debts in its observations and directions to its staff regarding the ATO power to issue a garnishee notice to a superannuation fund to recover any tax-related liability of a taxpayer.

  1. Tools for creating certainty

3.1 Mutual Wills agreement

Spouses with blended or non-blended families sometimes make "mirror" Wills nominating each other as the initial beneficiary and providing for the estate of the surviving spouse to be distributed equally between all of their children.

Mirror Wills are based on an understanding that all of the children would ultimately benefit equally.

This might all work well in some cases. But it should be understood that people have the right to change their Wills as often as they wish. It's known as testamentary freedom.

The surviving spouse is therefore allowed to change the "mirror" Will at a later stage and nominate only his or her children as beneficiaries.

The testamentary freedom of a person can be limited by way of a mutual Wills agreement. Under the agreement, the spouses give mutual promises that they will uphold their "mirror" Wills as well as to maintain their wealth and assets for the benefit of all of their children.

A mutual Wills agreement cannot stop a person from making a new Will. However, if there is a mutual Wills agreement in place, the executor of the new Will would hold the estate's assets on trust for the beneficiaries of the "mirror" Wills. Unfortunately, litigation is usually involved in such cases.

3.2 Family paramount agreement

The most successful succession plans are those that have been designed and therefore embraced by the people that can and will be affected by them. There is no single answer, which is why any solution will be that which is the right one for the individuals who urge a particular strategy – the goal is to find what strategies fit each individual and to seek the means to link these disparate interests and preferences together for the benefit of the group.

Nowadays, it is important to recognise that the Will is often a small (but important) part of any personal succession plan. Other documents are needed to direct the other forms of wealth that are held through other structures, such as superannuation, companies or trusts, and which will not be controlled by the Will.

A family paramount agreement relies on the equitable principles underpinning the mutual wills agreement concept discussed above. Such an agreement can incorporate a range of releases by family members in respect of each other and thereby increase the confidence of family members achieving the jointly agreed family succession goals.

3.3 Binding financial agreement

Couples are increasingly entering into binding financial agreements before marrying or before entering de facto relationships.

A binding financial agreement has even greater significance particularly in circumstances where there is a second or subsequent relationship and one spouse has substantial assets which may include for example, extensive business interests or large investment portfolios.

A binding financial agreement is a private agreement which provides how the assets and liabilities of the parties will be divided in the event of a separation. Depending upon the circumstances, such agreements often stipulate that each spouse will keep at least the assets they introduced into the relationship.

Binding financial agreements can be made before a relationship begins, during a relationship and after a relationship has broken down.

Pursuant to section 71A of the Family Law Act, the Family Court cannot override the terms of a binding financial agreement unless one of the parties to the agreement for example can prove fraud, duress or unconscionable conduct when the agreement was made, or, the agreement does not meet the specific requirements of the Family Law Act.

The Family Court can also set aside a binding financial agreement if there has been a material change relating to a child's circumstances which would cause hardship if the agreement were enforced.

Binding financial agreements may be used as a means to give certainty to parties entering into a relationship. They address the uncertainty of a court ordered property division which may arise where parties subsequently fail to agree about how their joint assets and liabilities are to be divided at separation. This uncertainty is due to the wide discretionary powers of judges or magistrates in the Family Court who make orders about the division of matrimonial property.

Binding financial agreements, while not being invincible, can however give valuable protection if properly and thoughtfully prepared.

3.4 Superannuation death benefit

Superannuation savings together with the family home are the two most valuable financial assets of most Australians. Without doubt, superannuation should be a key factor to consider in most estate planning.

It is important to know that your superannuation does not automatically form part of your estate. In other words, your Will might not cover the distribution of your superannuation.

The trustees of your superannuation fund hold the superannuation on trust for you to provide your retirement or death benefits.

Indeed, a fund's trustees generally have discretion to decide which of your eligible "dependants" should receive how much from your superannuation death benefit.

A dependant for superannuation law includes a spouse (including a de facto partner), children of any age, a financial dependant and any person with whom you have an interdependency relationship, which requires that you and the person have a close personal relationship, live together and one or the other provided the other with financial support, domestic support and personal care.

A fund's trustees may decide to pay your superannuation death benefit to your legal personal representative, who is the executor of your Will or the administrator of your estate, if you do not leave a Will. In this case, the benefit forms part of your estate and is distributed in accordance with the provisions of your Will or the laws of intestacy.

It is possible, however, to take away the discretion from a fund's trustees, depending on the terms of its trust deed.

The trust deeds of many large superannuation funds, for instance, allow members to make a binding death benefit nomination. If you have a valid binding death benefit nomination in place at the time of death, the trustees must pay the death benefit in accordance with the nomination.

In order for a binding nomination to be valid, the nomination must be in favour of one of the eligible dependants or the member's estate, must cover 100% of the death benefit and must be signed by the person making the nomination and be validly witnessed.

Under superannuation legislation, a binding death benefit nomination is valid for three years only and therefore needs to be regularly up-dated to remain valid.

The trustees/members of self-managed superannuation funds can make their own terms in relation to the payment of their death benefits. However, these terms must be in accordance with the superannuation legislation.

A self-managed superannuation fund provides wider flexibility regarding the distribution of death benefits.

Unlike large funds, members of self-managed funds may be able to nominate a spouse as the prime beneficiary of the death benefit and their children as alternate beneficiaries if and when the spouse predeceases the member.

Your self-managed superannuation fund trust deed may contain specific provisions relating to death benefit distributions provided those provisions comply with superannuation laws. Importantly, once embedded in the trust deed, an amendment would necessitate an amendment to the trust deed itself.

It is possible to leave the terms of payment flexible as long as one of the spouses is still alive and capable of making a decision but to leave no discretion as to how to distribute the death benefit upon mental incapacity or death of the surviving spouse.

Your self-managed superannuation funds may also facilitate making non-lapsing binding death benefit nominations that specify how the death benefits are to be distributed.

3.5 Tailored testamentary trusts

Anyone wishing to move beyond a simple Will should consider whether a testamentary trust is appropriate for their needs. These trusts are established under a Will, providing possible financial advantages (including relating to tax), flexibility and asset protection for your beneficiaries.

Anyone who wishes directly or indirectly to benefit children or grandchildren under the age of 18 years is among those who should consider establishing a testamentary trust under their Will to access the significant taxation benefits available for distributions.

Parents and grandparents sometimes use testamentary trusts, for instance, for such specific purposes as providing the funds for the education of minors.

Significantly, you dictate the terms of a testamentary trust in your Will, including whether those terms are strict or have a degree of flexibility.

You can direct under the terms of a testamentary trust, for example, that its income be distributed to different classes of beneficiaries or you can direct its trustees to consider certain needs of particular beneficiaries before any other beneficiaries and their needs.

In addition to the financial and tax benefits, a testamentary trust may provide, in certain circumstances, asset protection from creditors of beneficiaries as well as during property disputes following the breakdown of marital and de facto relationships.

If the deceased person left a simple Will or no Will, his or her assets become the personal assets of the beneficiaries and may therefore become accessible to their creditors or estranged spouses. If the Will establishes a testamentary trust, this is not necessarily the case.

A testamentary trust is a separate entity to the individual beneficiaries. The assets are owned by the trust and not by the beneficiaries. Only if the trustee of the testamentary trust decides to distribute any of the trust assets to any of the beneficiaries of the trust, the beneficiary becomes owner of the asset.

A testamentary trust can be an excellent vehicle to help protect your assets for future generations in accordance with your wishes.

  1. Don't forget about your super rules!

The definition of "spouse" in the superannuation law includes what we know to be a spouse: a married person. A "spouse" for superannuation law purposes also includes a couple who are in a relationship that is registered under a law of a State or Territory. In both situations the identification of a person as a spouse of another for superannuation purposes is clearly defined in law and in fact, there is no mistake as to who is and who is not a spouse.

What is not known or understood is the extended meaning of "spouse".

This is defined to include another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple. Those in a de facto relationship may breathe a sigh of relief; they will fall into this definition.

4.1 But how quickly can this occur?

This may seem like an odd question; isn't a de facto a de facto after living together for two years? Yes, but in the superannuation extended meaning of spouse there is no reference to time. There is no minimum time that the person must live with the other superannuation-deceased person.

What needs to be understood is how and when this extended meaning of spouse is to be used. When a superannuation member has died, the question is asked about the deceased superannuation member's superannuation, effectively as at the date of death. This means that a person who has lived with someone on a genuine domestic basis in a relationship for just one day (the date of death) will be a "spouse" for superannuation law purposes. This is the "blow-in" problem. This becomes very important if the member dies since this person will have a claim in respect of the deceased person's superannuation death benefit.

Before too much concern is raised it is certainly not suggested that one day is enough. Whilst at law this is the test, the courts take a more pragmatic approach and look to all of the surrounding circumstances to answer the question: did the claimant of the deceased's super, although not legally married to them, live with them on a genuine domestic basis in a relationship as a couple? Often this will encompass an examination of mutual and shared housing, house expenses, time together and the comments and observations of friends and relatives.

Unlike de facto law where the relationship must exhibit these 'couple-attributes' for two years, the superannuation definition of spouse starting point is from the first time the 'couple-attribute' is found to exist.

4.2 So who can this affect?

Young couples who make the first step to move in together, from when they move in. A separated former partner who, although still married, will have another spouse (by definition they will have two) when they cohabit with another. An elderly parent whose earlier partner has died and in pursuit of companionship shares accommodation with another.

4.3 What is the risk?

If you are the parent or sibling of one of the young couple, on their unfortunate early death your child's super may go to someone they have only recently met.

If you are the other separated former partner who is still married, you may find that you are in the courts fighting over who gets the super. You may be fighting for yourself or for your children.

If your elderly parent has a new companion, on their death your parents super may pass in ways not expected or appreciated.

4.4 Does your super have the spouse blow-in problem?

If you are a member of a multi-member superannuation fund which is completely independent of you, almost certainly the answer will be yes, you have the blow-in problem.

This is because it is all too common that the rules of the superannuation fund, of which you are only one small part, will mimic the superannuation law; the definition of spouse will be as described above.

If you are a member of a self managed superannuation fund (SMSF) the answer lies in the rules that govern your fund. What these rules say will govern whether a blow-in may or may not lay claim to a deceased superannuation member's superannuation benefit.

4.5 How do I fix it?

In the SMSF environment the question becomes: can you amend the trust deed/super fund rules?

  1. Does the amendment power in the SMSF deed permit the trustee to amend the terms of the trust deed?
  2. If no, consider a new SMSF if the blow-in risk is of real concern.
  3. If yes, are any restrictions or rules on how to do this?

If the amendment is permitted by the trust deed, you can change the rules that apply to your superannuation. If you are the controller of your superannuation fund you may approach your lawyer and ask them to help to draft an amendment or if you feel you can do it, you can effect the change yourself.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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