The Act amends the reporting timeframes for superannuation relating, to Director Penalty Notices (“DPN”), and the effect of the timing for reporting of Superannuation entitlements of employees by Company Employers.
There has been no change for PAYG and the three-month from due date rule continues to apply.
The new law eliminates the three (3) month from the due date rule for superannuation reporting only. The Superannuation amounts must be reported by their due date ( i.e. within 28 days of the end of each quarter) and not the former three (3) month from due date, otherwise the Directors liability is locked down , and Directors lose the opportunity to avoid personal liability.
Just to recap on the DPN Regime prior to 1st April 2019:
• Directors of a company can be held personally liable for the PAYGW and Superannuation amounts payable by a company if the amounts are not reported within three (3) months of their due date.
• A DPN may take the form of a Lockdown DPN or Non-Lockdown DPN
• If reported, but left unpaid, a Non-Lockdown DPN, gives Directors remission options including:
1. Paying the debt;
2. Appointing a Voluntary Administrator; or
3. Placing the company into Liquidation under a Creditors Voluntary Liquidation.
• If unreported, a Lockdown DPN will not provide the Non-Lockdown remission options above and the amount becomes a debt due by both the company and its directors.
• If amounts relating to PAYGW and Superannuation are at least reported within three (3) months of their due date, but no actual remittance of the sums due, then the directors escape personal liability on the proviso that the company takes the action referred to above within the 21 days referenced in the DPN.
1 April 2019
(i) Providing a gift to a beneficiary with a disability, that may not be able to manage their own affairs. The Will maker may want to ensure that the beneficiary may benefit from the income of the fund during their lifetime, with the capital to go to another beneficary on their death.
(ii) Protection of the capital of a fund from a spendthrift beneficiary, or a needy but drug or alcohol dependant child, where the Will maker wants to provide an allowance supplied on a regular periodic basis, rather than a larger lump sum amount that may be squandered.
(iii) Gifting income to grandchildren that are infants (i.e. under 18 years old) in a tax effective manner so that they take the income from the Trust to pay school fees and other necessities of life, with the full taxation benefits of s102AG of the Income Tax Assessment Act. The child or children can each benefit from the full tax free threshold of $18,200.00, rather than a spouse receiving the entirety of the benefit with only one tax free threshold, but still have the responsibility to support the child or children in after tax funds.
(iv) Protection from a Trustee in Bankruptcy may be achieved by leaving a benefit, that may otherwise have been absolutely given to a beneficiary that may become bankrupt, to a Trustee holding the assets in a discretionary trust. If properly drafted a Trustee in bankruptcy cannot access the assets of a Discretionary Trust.
(v) Limited protection from a beneficiaries spouse in a Family Law Property matter may be achieved, however the Family Court is most likely going to view any income stream from a Testamentary Trust, as a financial resource, and adjust a property settlement from other assets in the pool of joint matrimonial assets.
If you believe that a Testamentary Trust may be of interest to you, please raise the issue with one of our experienced Solicitors at Bridge Brideaux. A specifically tailored advice will be provided, that may incorporate a Testamentary Trust as part of your Succession planning solution.]]>
Unfortunately, no lawyer can give assurances to Will makers that someone in their family will not make a claim against their estate for a share, or larger share than the Will maker deems appropriate. All the Will maker can do is seek advice about the best way to try to protect the distribution of assets to those beneficiaries the Will maker seeks to benefit, and ways to make it difficult for others to upset the the Will makers testamentary wishes after their death.
A Will maker needs to consider the possibility that their estate may be contested in the future, at the time of providing instructions to their lawyer to prepare their will. Steps can then be taken to minimise the risk of a successful claim, by the preparation of a statutory declaration by the Will maker setting out the resons why the Will is made in a certain manner. That can include details of disentitling behaviour by a “black sheep” child, or a history of gifts provided to one potential beneficiary during the Will maker’s lifetime. Other specific reasons of the Will maker can be set out in the Statutory Declaration that will then be evidence of the Will makers mindset, at the time the Will was being made. A Judge that is later being asked to upset a Will makers testamentary disposition, will give appropriate weight to the issues that the Will maker swears to in the Statutory Declaration. Without the Statutory Declaration, it is very difficult to establish what may have been in the Will makers thoughts, sometimes years before death, and the subsequent hearing of any contested Will dispute.
Other steps such as placing assets into a family trust while alive, or testamentary trust upon death, or using a binding death benefit nomination to ensure that superannuation assets go directly to a named reipient, and don’t ever become estate assets, can be part of the solution.
Everyone benefits from good estate planning. Large portions of an estate can be consumed by legal fees when a family provision claim is brought against an estate. We at Bridge Brideaux have extensive experience in disputed estates, and in advising Will makers on the steps available to try to minimise the risk that your estate may be contested in the future.
Should you feel that you have been improperly left out of a Will, or should you be contemplating making a new Will, our friendly Solicitors can provide prompt, courteous and experienced advice in all estate matters.]]>
When the daughter’s claim for provision from the estate was successful, the Solicitor for the Testator was then successfully sued by the named beneficiary on the basis that the Solicitor should have advised the testator to alter the ownership of the properties to “joint tenants” rather than “tenants in common”. This would have had the effect of removing those properties as assets of the Testator’s estate upon his death. The right of survivorship which attaches automatically to land registered as “joint tenants” would have prevailed had the named beneficiary have been a “joint tenant” and the properties would have fallen outside of the Testator’s estate, and therefore not available for a Family Provision Application.
When advising Will makers, the extent of the duty of care owed by the Solicitor is wide, and without doubt extends to beneficiaries and potential beneficiaries.
This case is not dissimilar to the case involving the Estate of Peter Smeaton v Pattison, where a Solicitor failed to sever the joint tenancy prior to the death of a Testator, thereby leaving properties as ‘joint tenants’ and therefore out of the reach of the estate executor. The beneficiaries of the estate were then successful in suing the Solicitor for negligence, and the loss of the value of the properties that were received by the surviving joint tenant, and unavailable to them as beneficiaries.]]>
While it was not contested by any of the beneficiaries, the video did not meet the formal requirements for a testamentary instrument. Despite not being in writing and not being witnessed in writing by two witnesses who also witness each other and the testator execute the will, the video was admitted as an “informal will”. This was the first video admitted to Probate in NSW as an informal will.
Despite this result, His Honour made comment about the 3 year delay in obtaining Probate, the numerous requisitions issued by the Court Registry, and the legal costs incurred in obtaining a Grant of Probate. It appears clear from this decision that in every case where possible, a visit to a Solicitor, for a properly prepared written will, that complies with the formal requirements of the Succession Act would be a cheaper and better alternative.
11th August 2015
The Domestic and Family Violence Protection Act 2012 has made a number of changes to the existing legislation. Importantly, the definition of Domestic Violence has been widened and is defined as follows:
Domestic violence means behaviour by a person towards another person with whom the first person is in a relevant relationship that is:
Examples given in the Act include such things as coercing a person to engage in sexual activity; threatening a person with death or injury of the person, their child, or someone else; unauthorised surveillance of a person; unlawfully stalking a person.
There are many more examples in the Act of what constitutes Domestic Violence.
If you believe that you are a victim of domestic violence, you can discuss this with your Solicitor who can advise you on the steps to take to seek an Order to protect you.
If you are wondering what your rights are or whether to proceed, call us and we can advise you in this regard.]]>
The matters that separating couples have to deal with can be complex and confusing. People are forced to make life changing decisions at a time when they are least equipped to do so, when their lives are in a state of emotional upheaval. Few people really understand what their legal rights or responsibilities are. Well meaning friends and family may try to assist by relating their own experiences or those of people they know. This can only add to the confusion as no two situations are the same and legal advice should not be given by people not equipped to do so as at best it may be misleading and confusing.
If you are contemplating separation or if you have already separated, it is of the utmost importance that you see a Solicitor at an early stage, and obtain advice about your rights in your specific situation. Consulting a Solicitor does not mean that things are going to necessarily get “nasty” and that you will end up in Court. Quite the contrary, understanding your legal rights and how you might best approach the issues between you and your partner, may go a long way towards helping to resolve the issues without the expense and unpleasantness of Court where a complete stranger (a Judge) makes decisions about your assets and your children.
Having an understanding of the law places you in a far better position to discuss and negotiate matters with your partner. It is only if communications have broken down completely, or if there are issues of violence, that you might resort to Court proceedings. This should be a last resort after all other reasonable avenues are exhausted and should be avoided if at all possible.
If you are wondering what your rights would be if you separate or if you have already separated, then call us and find out.]]>
If you are the deceased’s spouse, child or dependant and you believe that the deceased’s Will has failed to provide you with what you believe to be a fair and proper proportion of the deceased’s estate then you may possess the right to seek the Court’s discretion to alter the terms of the deceased’s Will.
Please feel free to contact our experienced solicitors that would be more than happy to provide you with the proper advice in this area of extremely complex law.]]>
Previously Company Directors could avoid personal liability if:
within 21 days from the date of the issue of a Director Penalty Notice.
The major change provides a much tighter time frame for Directors to avoid personal liability for outstanding superannuation and PAYG tax. If the liability for PAYG and Superannuation remains unreported and unpaid for more than three months from its due date, the placing of the Company into Administration or appointing a Liquidator to wind up the company will not remove the personal liability of the Directors, despite the fact that they may take those steps within 21 days of receiving a Directors Penalty Notice.
Directors need to ensure that they maintain their lodgements within the three month lodgement period, and seriously consider appointing an external administrator if the Company will not be able to meet these liabilities by the due date.
It is also imperative that Directors ensure the ASIC records are up to date, particularly current addresses of Company Officers, as the non-receipt of a Director’s Penalty Notice will not avoid personal liability for the Director and the Director Penalty Notice will be deemed to have been received.
Should you need to discuss this issue, or any other corporate management concern, please contact us and we would be happy to assist.]]>