Mitchells Solicitors Principal Bryan Mitchell delivered this year’s Richard Williams Memorial Succession Lecture in what was a poignant tribute to his late friend and esteemed colleague.
Bryan presented Loans, lies and gifts – helping the next generation before death & protecting family wealth at Maroochy Surf Club, Maroochydore, on Monday night.
The firm’s director said he and Richard worked closely together on the Society of Trust and Estate Practitioners (STEP) Queensland Committee before the Brisbane barrister’s sudden passing in 2019 at the age of 49.
“Further, our firm would frequently brief Richard for various succession matters,” he said.
“He was very supportive and encouraging. He had a sharp mind and a kind heart.”
Bryan, who is a Queensland Law Society (QLS) Accredited Specialist in Wills and Estates, said it was an honour to present the lecture, which was hosted and chaired by Sunshine Coast Law Association.
The lecture discussed the proper management and assessment of gifts and loans between family in an estate context, exploring topics such as what can go wrong, loan structuring and estate administration.
“Parents make loans to their children and not gifts for a whole range of reasons, the dominant one being they wish to assist their children but, at the same time, they wish to protect family wealth from claims against the child and the child’s estate,” Bryan said.
“Similarly, where there is a strong risk of a family provision claim against the estate of a child or a parent, then that person would be best served to own assets in entities that do not form part of their estate, and where the cost of moving assets out of their name is undesirable, a gift and loan back strategy could be considered.”
The five key takeaway messages from the lecture were:
- If there is to be a gift, make sure all the legal elements are met and there is a deed executed reflecting it;
- If there is a loan, understand the minimum standards for it to provide protection in the face of relationship failure;
- Do not backdate documents and attempt to the reinvent the past;
- Cash is king. If there is a gift of a sum of money, move the cash from the bank account of the donor to the donee. If there is a loan, move the cash from the bank account of the lender to the borrower;
- In administering estates where there are gifts and loans, be cognisant there are legal and taxation issues and seek specialist advice beforehand.
Past speakers at the Richard Williams Memorial Succession Lecture have included Barrister Lee Nevison, FC Lawyers Director Chloé Kopilović, Barrister Caite Brewer and QLS Accredited Specialist Mehera Saunders.