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LIV Succession Law Conference

LIV Succession Law Conference

By Steven Sapountsis

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Welcome to everyone here today to one of the most popular Law Institute conferences – the Succession Law Conference.

I begin by acknowledging the traditional owners of the lands on which we meet today, the Wurundjeri people of the Kulin Nations. I offer my respects to their Elders past and present and extend that respect to anyone of Aboriginal or Torres Straits  Islander descent here today.

It is a privilege to say a few remarks on the opening of the conference.

May I also welcome some special guests, many of whom are presenters today, which shows the standing of this conference:

  • Her Honour, Justice Kate McMillan of the Supreme Court
  • Past- president of the Law Institute, Peter Gandolfo

(1990-91)

  • Judicial registrar Leonie Engelfield
  • Members of the Succession Law Section Executive Committee and
  • Senior members of the profession

I will also at the outset mention and thank the Law Institute staff, who work tirelessly to see that the conference runs seamlessly.

I will make my introduction today brief because we have a very full and a very interesting program today  that will be more fully introduced by the co-chair of our Succession Law Section, Kathy Wilson.

But I would like to say just a little about the incredibly important work carried out by those in our profession who have dedicated a good portion of their working lives to helping those clients with issues involving wills and estates matters.

I have this year had the honour of opening or being involved in conferences for the criminal law section, the family violence taskforce, the property law section and the costs law section.  

I think I already knew, but that list confirmed for me, that perhaps succession law is an attractive area of practice  because it often involves  elements of each of the just listed areas of law. It can be very challenging work, but also very rewarding work.

Perhaps there was also the attraction that, generally speaking, there was a fund available from which the costs of representation could be paid.

In that regard, I have noticed over the past few years a tightening of, or a more strict application of, the rule that allows  a party to have their costs paid from a fund – with a more ready willingness by the courts to find disentitling conduct 

This, combined with a more ready application of the Civil Procedure Act with its obligations on parties and their lawyers to, inter alia, only incur costs that are reasonable and proportionate, means that lawyers will need to make more critical decisions and early assessments in a matter about the issues at stake, and the proportionate costs that should be spent on those issues.

While such a development must be commended, and is to the benefit of the administration of justice generally, and to clients in a matter more particularly, can I take the liberty of suggesting that courts, which come to make an assessment of those actions, consider in that assessment making an allowance for the imperfect instructions received by the lawyers at the start of a proceeding and the common difficulty of not knowing which, of a number of issues, factual or legal, will find support and favour when the evidence is heard and tested.

The program today will help practitioners cope with modern succession law practice, and I commend the organisers and the speakers for the thoughtfulness of the topics and the presentations.

And, speaking of modern succession law practice, I trust that you have all caught up with the recent news affecting the operation of the  Foreign Residents Capital Gains Withholding Tax regime.

Following successful lobbying from the profession, including the LIV, the Tax Commissioner has made an instrument entitled PAYG Withholding variation for foreign resident capital gains withholding payments — deceased estates and legal personal representatives (F2016L01396) which came into effect on  7 September 2016.

The instrument varies to nil the amount that:

  • a deceased’s legal personal representative
  • beneficiaries of a deceased estate, or
  • surviving joint tenants that acquire a deceased joint tenant’s interest in a relevant asset
    would otherwise have to pay to the Commissioner pursuant to the foreign resident withholding tax payment regime which commenced 1 July 2016.

That is good news for the application of a regime that threatened to overly complicate the administration of estates.

The Succession Law Section represents the legal profession on practical, legal and policy issues affecting succession law matters – that is, generally speaking, wills and estates matters.

Apropos of that representative work, can I belatedly thank the Section Executive for its work in relation to the proposed changes to the testator’s family provision laws in 2014. Without the Executive’s fine work, Victoria was at risk of having a less fair, and a more complicated family provision regime than it now enjoys.
And, let me also mention the issue of client capacity – an issue that is important in all areas of practice, but most commonly discussed in succession law matters.
The Law Institute has recently completed, and has made available the LIV Capacity Guidelines (full and concise editions) to help practitioners identify when capacity may be an issue and provide advice on what to do if it is.
While the  guidelines will be formally launched later this year, a few copies are available from our senior policy lawyer Michelle  Whyte, and they will be available on the website

I would now like to briefly introduce Kathy Wilson who as the current Co-chair of the Law Institute of Victoria (LIV) Succession Law Section is, I am sure, familiar to you.

Kathy has been a member of the Executive Committee since 2003 and is also a member of the LIV’s Elder Law Section.
As a consultant lawyer at Aitken Partners, Kathy has extensive experience in succession law matters – and acts in both advisory and advocacy capacities. This is combined with an interest in some of the more esoteric aspects of succession law. In fact, one of my first exchanges with Kathy was when she queried the position that my firm Moores (then Moores Legal) had taken on the question of ademption, and whether some New South Wales case law was to be preferred to a recent result that Moores had obtained in an ademption case. I knew then that I was dealing a lawyer who had an abiding and deep interest in succession law.
At this year’s Law Institute Awards, Kathy’s expertise was publicly acknowledged when she received the accredited specialist of the year award.

I trust you will enjoy the conference, and I will now hand over to Kathy.


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