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New Year, New Will: Why Updating Your Estate Plan Matters

Fri, 20 Mar 2026 03:18:09 GMT

A new year is the perfect time to revisit an important question: is your Will still up to date?

Many people make a Will once and then leave it untouched for years. But life rarely stays still. Relationships change, children are born, assets are bought and sold, businesses evolve, and family circumstances shift. A Will that once reflected your wishes may no longer do so.

For that reason, reviewing your Will regularly is one of the simplest ways to protect the people and assets that matter most.

Why people delay updating their Will

It is easy to put off Estate Planning. Some people assume their Will is “good enough” because nothing dramatic has happened. Others feel uncomfortable thinking about what happens after they are gone.

In practice, the most common reason Wills become outdated is not neglect in a dramatic sense, but everyday change. You may have:

Married or separated.

Had children or grandchildren.

Bought property.

Started or sold a business.

Gained or lost significant assets.

Named an Executor who is no longer suitable or available.

If any of these apply, your current Will may need review.

What can happen if a Will is outdated

An outdated Will can create confusion, delay, and conflict at exactly the moment your family is already dealing with loss.

It may also fail to reflect your real intentions. For example, assets may pass to someone you no longer intended to benefit, or a chosen Executor may no longer be the right person to manage the Estate. In some cases, the wording of an old Will can even create disputes that could have been avoided with a simple update.

When to review your Will

A good rule of thumb is to review your Will after any major life event, and otherwise every few years. You should consider an update if you have experienced:

A marriage, divorce, or de facto relationship change.

The birth or adoption of children.

A death in the family.

A major change in assets or liabilities.

A move interstate or overseas.

A change in your wishes about guardianship for your children, gifts, or Executors.

Even if nothing major has changed, a periodic review helps ensure your instructions remain clear and legally effective.

A simple process can prevent future problems

Updating a Will does not have to be complicated. In many cases, a short review with a lawyer is enough to confirm whether the existing document still works or whether a new will is needed.

A proper review can also identify related issues, including:

Powers of attorney.

Appointment of guardians.

Superannuation nominations.

Business succession arrangements.

Asset ownership structures.

These matters often work together, so an estate plan should be considered as a whole rather than as a single document.

The takeaway

The start of a new year is a useful reminder to get organised, and your Will should be part of that process.

If your circumstances have changed, or if it has been several years since your last review, now is a sensible time to take another look. A current, well-drafted Will can save your family stress later and help ensure your wishes are carried out clearly.

Contact Crabtree Legal today for practical advice on updating your estate plan and protecting the people you care about most.

Merry Christmas from Crabtree Legal

Tue, 23 Dec 2025 09:57:49 GMT

As we wrap up the year, we want to extend our heartfelt thanks to everyone who has supported Crabtree Legal since we commenced operations in May 2025. It’s been a privilege to serve our clients, collaborate with our partners, and begin building a legal practice grounded in integrity and community.

We wish you and your loved ones a joyful Christmas filled with rest, connection, and gratitude. May the new year ahead be blessed with peace, purpose, and new opportunities.

Thank you for being part of our journey. We look forward to supporting you in 2026.

Warm regards,

Jonathan Crabtree & the Crabtree Legal team

Protecting Your Children’s Inheritance from Divorce with Testamentary Trust Wills: The Bernard v Bernard Case

Sun, 09 Nov 2025 08:28:12 GMT

At Crabtree Legal, we understand that protecting your children’s inheritance from potential relationship breakdowns is a crucial concern for many families. The landmark Family Court of Australia decision in Bernard and Bernard [2019] FamCA 421 confirmed that testamentary trust Wills can be an effective tool in safeguarding a beneficiary’s inheritance from being divided upon divorce.

Background of the Case

In Bernard v Bernard, the husband’s late father created two discretionary testamentary trusts through his Will — one for his son and one for his daughter. The trusts operated as “mirror trusts”: each sibling was the trustee of the other’s trust but had no control over their own trust. The husband was the primary beneficiary of his trust, but the assets were legally owned and controlled by his sister as trustee.

When the husband and wife later separated and divorced, the wife sought to have the husband’s inheritance held in the testamentary trust included in the matrimonial property pool for division. However, the husband argued that since he did not legally own or control the trust assets, and his interest was solely as a beneficiary dependent on the trustee’s discretion, the inheritance should be excluded from the property pool.

Court’s Decision and Key Findings

The Family Court ruled in favor of the husband, finding that the assets in the testamentary trust were not part of the matrimonial pool. The court’s key reasoning was that:

The husband was not the settlor of the trust—the deceased father was.

The husband had no legal ownership or control over the trust assets.

The trustee (the husband’s sister) had complete discretion over income and capital distributions.

The husband’s interest was discretionary and not guaranteed, meaning he could not compel distributions.

The trust assets were inherited and not acquired during the marriage.

This decision confirmed that a properly structured testamentary trust can protect a beneficiary’s inheritance from being divided upon divorce by separating legal ownership and control from mere beneficial interest.

Why This Matters for Your Estate Planning

Bernard v Bernard highlights how testamentary trust Wills can be used to safeguard your children’s inheritance from future relationship breakdowns, ensuring that inherited assets remain protected within the family and are not treated as divisible property in the event of a divorce.

At Crabtree Legal, we specialise in Wills incorporating testamentary trusts and can provide tailored advice and drafting services to help you protect your family’s wealth across generations.

Contact Crabtree Legal Today

If you want to ensure your children’s inheritance is protected from a future divorce or relationship breakdown, contact Crabtree Legal today. We will guide you through establishing testamentary trust Wills that provide peace of mind and strong asset protection tailored to your family’s needs.

Thank You to The Executive Centre and Attending Business Leaders

Fri, 17 Oct 2025 06:12:58 GMT

Crabtree Legal extends our sincere thanks to The Executive Centre for graciously hosting yesterday's Member Showcase lunch event, where our Director, Jonathan Crabtree, had the pleasure of presenting to fellow business owners.

The session explored the limitations of Artificial Intelligence (AI) in drafting key legal documents for start-ups and Small to Medium Enterprises (SMEs). Together, we examined common pitfalls that arise when relying solely on automated drafting tools, including the risks of incomplete agreements, unenforceable clauses, and loss of commercial protection.

We are particularly grateful to the business owners and entrepreneurs who attended and contributed to the discussion. Your questions, insights, and shared experiences sparked an engaging and practical conversation about balancing technological progress with the value of tailored legal advice.

At Crabtree Legal, we remain committed to helping Perth’s business community make informed decisions as they grow and protect their ventures. Events like this highlight the strength of collaboration between local professionals and the importance of thoughtful, legally sound documentation in every stage of business development.

To learn more about how we assist start-ups and SMEs with business structuring, shareholder agreements, and contract reviews, please contact us.

The Benefits of Testamentary Trust Wills Explained

Tue, 09 Sep 2025 04:47:06 GMT

Testamentary Trust Wills provide significant benefits for individuals and families planning the distribution of their estates in Western Australia, particularly in terms of asset protection, tax efficiency, and supporting vulnerable beneficiaries. These trusts are established within a Will and become effective upon death, offering tailored advantages for diverse family circumstances.

Key Benefits of Testamentary Trust Wills

Asset Protection

Safeguards inheritance from creditors, bankruptcy, and family law disputes by holding assets within a trust rather than direct ownership by beneficiaries.

Shields assets from potential misuse or waste by beneficiaries with high-risk behaviours such as gambling, financial instability, or poor money management.

Protects funds from being included in divorce settlements, ensuring they remain accessible only to intended family members.

Tax Advantages

Optimises tax outcomes by enabling income splitting among beneficiaries, especially those on lower marginal tax rates.

Allows income distributed to minor children (under 18) via a testamentary trust to receive the full adult tax-free threshold (around $19,000–$22,000 per child annually, tax-free), compared to only about $500 in a standard family trust.

Provides flexibility to defer tax liabilities for overseas beneficiaries by controlling the timing and distribution of income.

Support for Vulnerable and Young Beneficiaries

Helps ensure responsible use of inherited assets by enabling trustees to set age thresholds (e.g., 21, 25, or older) for the release of funds to younger beneficiaries.

Allows creation of specialised trusts for beneficiaries living with disabilities, including Social Security Act 1991 (Cth) compliant Special Disability Trusts.

Can provide long-term security for those who require ongoing support, such as family members with health challenges or special needs.

Estate Planning Flexibility

Highly customisable trusts can be tailored for one person, an entire family, or multiple generations, addressing complex family or blended family situations.

Enables control over how and when assets are distributed, including restricting access to certain beneficiaries or protecting inheritance lines within families.

Trustees are chosen to ensure accountability, oversight, and alignment with the intentions of the Will-maker, often with recommendations for two trustees to reduce risks.

Who Should Consider a Testamentary Trust Will?

Individuals leaving substantial estates (often $2,000,000 or more) including superannuation or life insurance.

Estates intended to support minor children, vulnerable adults, or those likely to face relationship or financial risks.

Families wishing to maximise tax savings and asset protection across generations.

Crabtree Legal: Expert Guidance for Your Estate Plan

Crabtree Legal offers tailored advice on testamentary trust Wills to protect your legacy and secure your family’s future. Whether you need a simple Will or a complex estate plan, we support business owners, families, and individuals through every stage of estate planning, succession, and trust creation.

Feel free to contact Crabtree Legal for a personalised consultation to explore how a testamentary trust Will could benefit your unique situation.

How Getting Married or Divorced Can Revoke Your Will

Wed, 03 Sep 2025 02:14:29 GMT

A person's Will in Western Australia is generally revoked by marriage or divorce, unless it's made with their specific intention to marry or divorce clearly stated in the Will (or there is other evidence which establishes this intention).

What Happens If You Get Married

Under section 14 of the Wills Act 1970 (WA), marriage automatically invalidates your existing Will, unless your Will expressly states it was made "in contemplation of marriage" to your intended spouse.

If your Will is invalid and you pass away, your assets will be divided according to WA's intestacy laws, which may not reflect your wishes.

The best practice is to obtain a new Will after marriage to ensure all your assets and intentions for your loved ones are protected.

What Happens If You Get Divorced

Section 14A of the Wills Act 1970 (WA) outlines that divorce also cancels your Will unless your Will shows a clear intent for it to remain valid after divorce.

Practically speaking, the automatic revocation in section 14A makes sense, as it is unlikely that you would still want to appoint your former spouse as the Executor of your Will, or provide for them from your estate, after you have divorced.

However, if you do not update your Will after divorce, there may be unintended consequences, such as assets going to your ex-spouse or confusion and disputes among family members.

Why Updating Your Will Matters

Failing to update your Will after marriage or divorce can lead to estate mismanagement, litigation, or your wishes not being honored.

If your relationship status has changed, make an appointment to create or update your Will so all provisions accurately reflect your current wishes and protect your loved ones.

This is especially important for blended families, business succession planning, and unique asset structures.

Get A Will That Reflects Your Changed Circumstances

At Crabtree Legal, a veteran-owned and operated law firm in Perth, we pride ourselves on delivering expert, practical advice and drafting for Wills, estate, and succession matters. If you or anyone you know has recently married or divorced, please refer them to us—it may be time to get a new Will to ensure their wishes and family's future are protected.

Why Every Parent Should Nominate a Legal Guardian for their Minor Children in their Will

Wed, 27 Aug 2025 02:01:25 GMT

Nominating legal guardians for minor children in a Will is a critical act for every parent, providing clarity and security for children should the unimaginable occur. Without clear instructions, the law dictates who may look after minor children, often leading to uncertainty, potential family disputes, and complex legal proceedings.

Why Appoint Legal Guardians in Your Will

Putting a nomination for legal guardianship in your Will ensures that trusted people—whose values, beliefs, and care align with your wishes—can support and protect your children if both parents pass away. This appointment is a proactive step, sparing children from needless disruption and emotional harm during an already traumatic period. It also guides family and courts, minimising delays and potential disagreements.

Who May Look After Children Without a Named Guardian

If neither parent has nominated a legal guardian in their Will, Western Australian law applies. Usually, the closest surviving relatives, such as grandparents, aunts, uncles, or older siblings (if they are adults), might step forward to care for the children. However, these individuals do not gain automatic legal guardianship. Often, more than one person may seek this role, leading to possible disputes and, in some cases, involvement by the Department of Communities (Child Protection) if no suitable family members exist or agree.

Legal Steps to Obtain Guardianship in WA

Application to the Court : if a suitable person wishes to become a minor’s guardian, they must apply to the Court.
Assessment by the Court : the Court will consider the child’s welfare and best interests above all else, assessing the applicant’s capacity, relationship with the child, and any competing claims from other relatives or interested parties.
Possible Departmental Involvement : if no clear family candidate exists, or if there are concerns about the candidates, the Department of Communities may become involved, and the child may be placed in State care, at least temporarily.

The absence of a Will nomination can lead to delays, uncertainty, and the risk that decisions are made by those unfamiliar with the family’s wishes. The surest path is to name trusted guardians in your Will, providing certainty for your children’s future care and stability.

For tailored, practical succession planning advice—including the nomination of legal guardians—please contact Crabtree Legal.

What Happens to Your Estate If You Die without a Will in Western Australia (after 5 July 2025)

Sun, 17 Aug 2025 13:13:44 GMT

Making a Will is the best way to ensure your assets and wishes are respected after your passing. But what happens if you die without a Will in Western Australia? The law refers to this situation as “dying intestate”, and your Estate will be distributed according to strict rules set out by the Administration Act 1903 (WA) , specifically section 14. This can have unexpected consequences for your loved ones, and may not reflect your wishes.

How Is Your Estate Distributed Under Section 14 of the Administration Act 1903 (WA)?

When someone passes away without a valid Will in WA, their estate is distributed to eligible relatives in strict proportions prescribed by law. The following summarises how assets are distributed, depending on which family members survive you:

Spouse/de facto partner only = all to spouse/de facto partner.
Spouse/de facto and child(ren) of both = $546,000 ( as at 5 July 2025 ) plus one-third to spouse; remaining two-thirds equally between children.
Spouse/de facto and child(ren) (not all shared) = $546,000 ( as at 5 July 2025 ) plus one-third to spouse; remaining two-thirds equally between children (including any from other relationships).
Spouse/de facto and no children, but parents and siblings (or nieces and nephews) = $815,500 ( as at 5 July 2025 ) plus half to spouse; with the remaining half a first amount of $65,500 ( as at 5 July 2025 ) to the parents and the rest equally between parents and siblings (or nieces and nephews).
Children and no spouse/de facto = all equally among children.
No spouse, no children, but parents only = all to parents.
No spouse, no children, but parents and siblings (or nieces and nephews) = first amount of $65,500 ( as at 5 July 2025 ) to the parents and the rest equally between parents and siblings (or nieces and nephews).
No spouse, no children, no parents, but siblings (or nieces and nephews) only = all equally to siblings (or nieces and nephews).
No spouse, no children, no parents, no siblings, but grandparents = all equally among grandparents.
No spouse, no children, no parents, no siblings, no grandparents, but aunts and uncles (or cousins) = all equally among aunts and uncles (or cousins).
No eligible relatives = your Estate goes to the State of Western Australia.

Why Is Intestacy Often a Problem?

If you die without a valid Will, you lose control over who receives your assets. For example:

Your spouse might have to share your Estate with children from another relationship, causing stress and uncertainty.
Children, parents or siblings might inherit more (or less) than you intended.
People you care about may miss out completely—such as stepchildren, friends, or charities.
Disputes and delays are far more likely.

Secure Your Legacy—Plan Ahead

If the default rules above are not what you want for your loved ones, the best solution is to prepare a legally valid Will that reflects your wishes.

Contact Crabtree Legal Today

As a veteran owned and operated law firm based in Perth, WA, Crabtree Legal is ready to help you:

Draft a Will tailored to your unique circumstances.
Advise on Estate Planning, including Superannuation and Trusts.
Create Powers of Attorney and Guardianship documents.

Why You Should Engage a Lawyer to Draft and Witness Your Will

Tue, 12 Aug 2025 01:55:10 GMT

When planning for your family's future, drafting a Will is one of the most important steps you can take to ensure your wishes are respected and your assets are distributed as intended. While online templates and DIY kits may seem convenient or cost-effective, there are significant risks associated with self-drafting your Will. Here's why working with a qualified lawyer—especially a veteran lawyer like Jonathan Crabtree Legal—is a wise investment in your family's security and peace of mind.

1. Legal Expertise Ensures Your Will is Valid

A Will that doesn’t meet legal requirements can be challenged in court or disregarded entirely. Lawyers have deep knowledge of the intricacies of wills, estate, and succession laws in Western Australia. By engaging a professional, you ensure your Will:

Meets statutory requirements for validity, including proper witnessing and execution.
Is worded clearly to avoid ambiguities or misinterpretations.

Anticipates future changes (such as marriage, divorce, or the birth of children).

2. Avoiding Costly Mistakes

DIY Wills commonly lead to errors, from incorrect signing procedures to omitted details about assets or beneficiaries. Such mistakes can result in:

Your Will being declared invalid.

Family disputes or litigation.

Unintended tax liabilities or missed opportunities for asset protection.

A an experienced estate planning lawyer will tailor your Will to your specific circumstances, ensuring all provisions are accurate and comprehensive.

3. Advice Beyond Simple Drafting

Every individual’s situation is unique. An experienced lawyer will provide guidance on estate planning strategies designed to protect your legacy, such as:

Testamentary trusts for children or vulnerable beneficiaries.

Business succession planning to secure your business interests.

Dealing with superannuation, trusts, and complex assets.

Reviewing Powers of Attorney and Guardianship to safeguard your interests if you lose capacity.

4. Proper Witnessing and Execution

Improper witnessing is a leading cause of invalid Wills in Australia. A lawyer will:

Ensure that your Will is signed and witnessed in accordance with the law.

Act as a professional witness, ready to defend the process should it be challenged.

Hold safe records for future reference.

5. Peace of Mind and Protection for Your Loved Ones

By entrusting your Will to an experienced estate planning lawyer, you protect your family from avoidable stress and conflict. Your lawyer can help anticipate problems, resolve ambiguities, and reduce the likelihood of challenges to your Will’s validity.

How Crabtree Legal Can Help

At Crabtree Legal, Jonathan Crabtree has extensive expertise in preparing straightforward and complex Wills, including those incorporating testamentary trusts, and Powers of Attorney and Guardianship. As a veteran owned and operated law firm based in Perth, WA, we pride ourselves on providing practical, empathetic advice tailored to your needs.

Crabtree Legal Now a Proud Business Sponsor of Sonshine FM: Perth’s Family-Focused Radio Station

Wed, 30 Jul 2025 04:36:46 GMT

Crabtree Legal is delighted to announce our new partnership as a business sponsor of Sonshine FM , Perth’s family-focused radio station. As a firm committed to supporting local communities and family values, we’re thrilled to align ourselves with a station that shares our dedication to enriching the lives of Perth families.

Why Sonshine FM?

Sonshine FM is Perth's leading Christian radio station, offering uplifting, family-focused content to keep listeners connected and inspired. The station has earned deep community trust, making it a natural partner for Crabtree Legal as we strive to help individuals and businesses achieve their goals with confidence and clarity.

Supporting Our Community

From company set-ups and business structuring to Wills, estate and succession planning , Crabtree Legal is committed to providing high-quality, approachable legal services rooted in integrity and care. Our sponsorship of Sonshine FM allows us to give back to the community that has supported us, reinforcing our commitment to being there for you—whether in the boardroom or at the kitchen table.

Listen Out for Our Radio Ads

As part of our sponsorship, our firm adverts will be airing on Sonshine FM over the coming months. Tune in to hear how Crabtree Legal can help you with:

starting up, buying or selling a Business; and/or
preparing Wills and providing estate planning advice.

Hear our latest radio ads here:

Thank You for Your Support

We are deeply grateful to our clients and the wider Perth community for your trust. This sponsorship marks another step in our journey to make expert legal advice accessible and to provide support to families and businesses in Western Australia.

Ready to take the next step for your business or personal legal needs?

Contact Crabtree Legal today and discover the difference that genuine expertise and care can make.

Why Every New Company Needs a Shareholders Agreement—Drafted and Executed Early

Wed, 16 Jul 2025 02:16:32 GMT

Starting a new company is an exciting venture, but establishing a solid legal foundation from the outset is critical for long-term success. One of the most overlooked yet essential documents for any business with more than one shareholder is a Shareholders Agreement. Engaging a commercial lawyer to draft and assist you to validly execute this agreement at the commencement of your business can protect your interests, prevent disputes, and set your company up for lasting stability.

What is a Shareholders Agreement?

A Shareholders Agreement is a private, legally binding contract between a company’s shareholders (and often the company itself). It sets out how the company is managed, how key decisions are made, how exits or disputes are handled, and what happens if a shareholder wishes to leave or transfer their shares.

Key Reasons to Get a Shareholders Agreement Drafted by a Commercial Lawyer

1. Clarity and Certainty on Roles and Rights

Clearly outlines each shareholder’s rights, responsibilities, and decision-making powers from the outset.
Removes ambiguity around management structure, voting rights, and director appointments, helping to avoid misunderstandings and conflicting expectations.

2. Preventing Costly Disputes

Provides agreed procedures for resolving conflicts, often through internal mechanisms and alternative dispute resolution before court action.
Helps ensure minor disagreements do not escalate into expensive and disruptive legal battles.

3. Protecting the Interests of All Shareholders

Safeguards the investments and interests of both majority and minority shareholders, preventing unfair treatment and providing mechanisms for redress.
Outlines how decisions are made, including which require unanimous or special majority consent, benefiting both active and passive shareholders.

4. Smooth Share Transfers and Exit Strategies

Details rules for issuing new shares or transferring existing ones, including pre-emptive and “drag-along” or “tag-along” rights.
Ensures continuity and stability if a shareholder wishes to leave, retires, or passes away, preventing unwanted third parties from joining the company.

5. Business Growth and Investment Readiness

Demonstrates business maturity and governance, giving confidence to future investors, banks, and other stakeholders.
Investors often insist on a robust agreement as a prerequisite for funding rounds or other strategic partnerships.

6. Protecting Confidentiality and Company Value

Includes clauses safeguarding against misuse or disclosure of confidential company information.
Prevents former shareholders from directly competing with the business or poaching key staff and clients.

Why Get Help from a Commercial Lawyer?

While some templates are available online, they rarely address the unique dynamics and needs of each startup. A commercial lawyer will:

Tailor the agreement to your business’s structure, goals, and risk profile.
Ensure compliance with the Corporations Act 2001 (Cth) and other relevant Australian laws.
Minimise the risk of unenforceable or contradictory clauses and keep your agreement up-to-date as your business evolves.

The Importance of Executing the Agreement at Commencement

Executing a shareholders agreement at the start of your business journey:

Ensures all founders and shareholders are aligned before capital, effort, and goodwill have been significantly invested.
Avoids “moving the goalposts” after the fact, when negotiations may be more contentious or when disputes have already emerged.
Ensures the terms are legally binding and enforceable, giving all parties true peace of mind.

Conclusion

A shareholders agreement is not a statutory requirement—but for any new Australian company with more than one shareholder, it is a critical tool for risk management, governance, and business success. Engaging a commercial lawyer to draft, tailor, and help you execute this document from day one offers real protection and clarity for your business and its investors.

If you’re setting up a company, connect with Crabtree Legal to ensure you start up with the right legal structure in place. We can help tailor a shareholders agreement to fit your business, safeguard your rights, and support your future growth.

This article is provided for general information only and does not constitute legal advice. For advice tailored to your business, please contact Crabtree Legal.

Understanding Trusts in Western Australia: A Guide for Individuals and Business Owners

Tue, 08 Jul 2025 14:16:08 GMT

What Are Trusts?

A Trust is a legal arrangement where a person or entity ( the Trustee ) holds and manages assets for the benefit of others (the Beneficiaries ). The Trustee is responsible for administering the Trust in accordance with its terms and in the best interests of the Beneficiaries. Trusts are commonly used for asset protection, estate planning, and business structuring in Australia.

Key Parties in a Trust

Settlor : the person who creates the Trust and contributes the initial assets.
Trustee : the individual or company responsible for managing the Trust assets.
Beneficiaries : the people or entities who benefit from the Trust.
Appointor : the person who has the power to appoint or remove Trustees.

How Can Trusts Benefit Individuals and Business Owners?

Trusts offer a range of advantages for both personal and business purposes:

1. Asset Protection

Trusts can help shield assets from creditors, lawsuits, or family disputes, as the assets are legally owned by the Trustee, not the individual.

2. Estate Planning and Succession

Trusts allow for the smooth transfer of wealth to future generations, helping to provide for minor or vulnerable Beneficiaries.

3. Tax Planning

Trusts can offer tax flexibility. Income generated by Trust assets can be distributed among Beneficiaries, potentially reducing the overall tax liability.

4. Business Structuring

Trusts are often used by business owners to separate business assets from personal assets, manage risk, and facilitate succession planning.

5. Privacy

Trust arrangements are generally private, unlike Wills which become public during probate.

How Are Trusts Created in Australia?

Establishing a Trust in Australia involves several key steps:

1. Decide on the Type of Trust

Common types include:
Discretionary Trust : Trustee decides how income/capital is distributed among Beneficiaries. Common for family Trusts.

Unit Trust : Beneficiaries hold fixed units, similar to shareholders in a company. Often used for business or investment purposes.

Testamentary Trust : created by a Will, comes into effect upon the Will-maker’s death.

2. Prepare a Trust Deed

A Trust deed is a legal document that sets out the terms and conditions of the Trust, including the powers of the Trustee and the rights of the Beneficiaries.

3. Settle the Trust

The Settlor provides the initial asset (often a nominal sum) to establish the Trust.

4. Appoint Trustees and Beneficiaries

The Trust deed will name the Trustees and Beneficiaries. The Trustee must accept their role and responsibilities.

5. Stamp Duty and Registration

In Western Australia, unlike some other Australian states, stamp duty is not payable on the mere execution of a Trust deed and it does not need to be stamped. Registration with the Australian Taxation Office (ATO) will be necessary if the Trust will have a Tax File Number or Australian Business Number.

6. Ongoing Compliance

Trustees must comply with the terms of the Trust deed and relevant laws, including annual reporting and tax obligations.

If you are considering establishing a Trust, Crabtree Legal can provide tailored advice to ensure your Trust is structured to meet your personal or business needs.

How to Draft a Will in Western Australia that Minimises the Risk that it will be Challenged via a Family Provision Claim

Wed, 02 Jul 2025 02:11:45 GMT

Understanding Family Provision Claims in Western Australia

Family provision claims allow certain individuals to seek a greater share of a deceased person's estate if they believe they were not adequately provided for. In Western Australia, these claims are governed by the Family Provision Act 1972 (WA). This article addresses key aspects of eligibility, court considerations, and Will-drafting strategies to minimise disputes.

1. Eligibility to Make a Family Provision Claim in WA

Under the Family Provision Act 1972 (WA), the following individuals may apply to the Supreme Court for a larger share of an estate:

Spouses or de facto partners (current or former, if receiving maintenance from the deceased).
Children , including those born within 10 months after death.
Grandchildren who were either:
Maintained by the deceased before death; or
Living at the time of death with a parent who predeceased the deceased.
Stepchildren who were maintained by the deceased or where the deceased received >$517,000 from the stepchild's parent's estate.
Parents of the deceased.

Claims must be filed within six months of the grant of probate or letters of administration, though extensions are rarely granted.

2. Factors Considered by the Court

When assessing entitlement, the court evaluates:

Financial and personal circumstances : The applicant’s age, education, earning capacity, and current resources.
Relationship dynamics : The nature of the relationship between the applicant and deceased, including conduct toward each other.
Estate composition : The value, type, and liquidity of estate assets.
Comparative needs : The financial requirements of other beneficiaries and dependents.
Contributions : Any contributions by the applicant to the deceased’s assets or welfare.
Existing provisions : What (if any) provision was made for the applicant in the Will.

The court does not assume equal distribution among children or automatically interfere with testamentary freedom.

3. Drafting Wills to Minimise Claim Risks

To reduce the likelihood of successful claims, consider these strategies:

Clarity and specificity : Draft a detailed Will that unambiguously outlines asset distribution, reflecting current circumstances and intentions. Ambiguous terms or outdated provisions increase dispute risks.
Memorandum of wishes : Attach a non-binding document explaining exclusions or unequal distributions (e.g., estrangement, prior financial support).
Proactive communication : Discuss your estate plans with potential claimants to manage expectations and reduce post-death surprises.
Regular reviews : Update your will every 3–5 years or after major life events (e.g., marriage, divorce, new dependents).
Caution with forfeiture clauses : While "no-contest" clauses (threatening inheritance loss for challengers) may deter claims, they are not legally binding in Western Australia for family provision claims.

Key Takeaways

Understanding eligibility criteria, court evaluation factors, and preventive Will-drafting techniques is essential for effective estate planning in Western Australia. Executors and beneficiaries should seek prompt legal advice when disputes arise, while Will-makers should prioritise clear documentation and open communication to mitigate risks. Professional legal guidance ensures compliance with the Family Provision Act 1972 (WA) and reduces the emotional and financial toll of litigation.

Understanding Simple vs Complex Wills in Australia: Key Differences and Considerations

Wed, 25 Jun 2025 05:13:25 GMT

Estate planning is a foundational step in securing your legacy, and choosing between a simple or complex Will depends on your assets, family dynamics, and long-term objectives. Below, we clarify the distinctions to help you make an informed decision.

What is a Simple Will?

A simple Will provides straightforward instructions for distributing your estate. Key characteristics include:

Direct distribution: assets are left directly to beneficiaries as lump sums, percentages, or specific gifts (e.g. 'my children are to receive equal shares as tenants in common').
Minimal structures: no trusts or complex conditions; executors transfer assets immediately after death.
Ideal for: uncomplicated estates with modest assets, no dependents requiring special protection, and low risk of disputes.

Pros:

Cost-effective: lower legal fees due to simpler drafting.
Efficient administration: executors can distribute assets faster with fewer compliance steps.

Cons:

Limited protection: beneficiaries receive assets directly, exposing inheritances to risks like divorce, bankruptcy, or irresponsible spending.
Tax inefficiency: income generated by inherited assets (e.g., rental properties) is taxed at the beneficiary’s marginal rate, potentially increasing their tax burden.

What is a Complex Will?

A complex Will incorporates advanced structures to manage asset distribution under specific conditions. Key features include:

Testamentary Trusts: assets flow into a trust upon your death, managed by a trustee for beneficiaries (e.g. minor children or financially vulnerable relatives).
Custom conditions: distributions can be age-based (e.g. 'children inherit at 25'), staggered, or contingent on milestones (e.g. university graduation).
Ideal for: larger estates, blended families, business owners, or beneficiaries needing asset protection (e.g. professionals at risk of lawsuits).

Pros:

Asset protection: trusts can shield inheritances from beneficiaries’ creditors, divorce settlements, or poor financial decisions.
Tax advantages: income generated by trust assets can be distributed strategically, potentially lowering overall tax liabilities (e.g. splitting income among lower-tax-rate beneficiaries).
Greater control: specify how and when assets are used (e.g. funds for education only).

Cons:

Higher costs: drafting and administering trusts requires specialised legal expertise, increasing fees.
Administrative complexity: trustees must manage compliance, record-keeping, and annual tax filings for the trust (with increased fees to obtain accounting and/or financial advice to support if needed).

When to Choose Each Will Type

Opt for a simple Will if:

Your estate is modest (e.g. under $500,000) and your beneficiaries are financially responsible adults.
You seek a quick, cost-effective solution without ongoing administrative needs.

Choose a complex Will if:

Your estate includes businesses, trusts or international assets.
Beneficiaries require long-term protection (e.g. minors, individuals with disabilities, or high-risk professionals).
You prioritise tax optimisation or wish to mitigate family conflict.

Conclusion

Selecting between a simple and complex Will hinges on your unique circumstances. While simple Wills offer efficiency for uncomplicated estates, complex Wills provide robust solutions for asset protection and tax planning. Consult Crabtree Legal to tailor your will to your goals—ensuring your legacy is distributed securely and as intended.

How Lawyers Assist with Selling or Buying a Business

Wed, 18 Jun 2025 01:01:16 GMT

Selling or buying a business can be a complex process involving significant legal, financial, and operational considerations. Engaging a lawyer with experience in selling and buying businesses is crucial to ensure the transaction proceeds smoothly, complies with Australian law, and protects your interests—whether you are a buyer or a seller.

Role of Lawyers in Business Sales and Purchases

Lawyers play a central role in every stage of the business sale or purchase process:

Due Diligence : Lawyers conduct thorough due diligence to uncover hidden risks, such as undisclosed debts, pending litigation, regulatory issues, or problems with contracts, leases, and intellectual property. This process helps buyers make informed decisions and gives sellers confidence that all disclosures are accurate.
Drafting and Reviewing Agreements : Lawyers draft and review all key agreements, ensuring they are tailored to the specific transaction and comply with Australian law. This includes the main business sale agreement and any ancillary documents.
Negotiating Terms : Lawyers negotiate terms on behalf of their clients to secure favorable outcomes, clarify obligations, and address any ambiguities or potential pitfalls in the contract.
Transfer of Assets and Contracts : They manage the legal transfer of assets, leases, permits, licenses, and ongoing contracts, making sure all necessary approvals and assignments are obtained.
Employment Law Compliance : Lawyers advise on the treatment of existing employees, transfer of entitlements, and compliance with workplace laws, ensuring a seamless transition for staff.
Settlement and Completion : They oversee the settlement process, confirming that all conditions are satisfied, payments are made, and legal ownership is transferred without outstanding liabilities.
Post-Sale Support : Lawyers can provide ongoing advice on post-sale obligations, such as restraint of trade, handover arrangements, and dispute resolution.

Key Agreements and Documents Lawyers Draft

The main legal document in a business sale is the Business Sale Agreement. Lawyers also prepare or review several related documents to safeguard their client’s interests:

Heads of Agreement or Term Sheet : A preliminary, usually non-binding document setting out the key terms agreed by the parties before the full contract is drafted.
Business Sale Agreement : The comprehensive contract detailing all terms and conditions of the sale, including what is being sold (assets, shares, goodwill), price, payment terms, and settlement arrangements.
Transfer Deeds : For transferring ownership of specific assets, intellectual property, or leases.
Employment Agreements or Transfer Notices : To address the transfer or termination of employees and the treatment of their entitlements.
Non-Disclosure Agreements (NDAs) : To protect confidential information during negotiations and after the sale.
Completion Checklist : A practical tool to ensure all steps are completed before settlement.

Why Legal Advice Is Essential

Attempting to buy or sell a business without legal guidance exposes parties to significant risks, including:

Unintended assumption of liabilities.
Disputes over what is included in the sale.
Problems with the transfer of leases, contracts, or licenses.
Employment law breaches.
Tax and regulatory non-compliance.

Lawyers help ensure all legal requirements are met, documents are properly drafted, and your interests are protected throughout the transaction.

Conclusion

Once the value of a business reaches a certain level, lawyers become indispensable in business sales and purchases. They provide expert guidance, draft and negotiate robust agreements, and manage the legal complexities of the transaction. Engaging a lawyer early in the process is the best way to help ensure a successful, compliant, and dispute-free outcome.

Key Legal Documents Start-Ups Should Engage Lawyers (Not AI) to Draft

Wed, 11 Jun 2025 04:00:55 GMT

Launching a start-up in Australia is an exciting venture, but it also involves navigating a complex legal landscape. Engaging a lawyer to draft and review your foundational legal documents is crucial for protecting your interests, ensuring compliance, and setting your business up for long-term success. Below is a guide to the key legal documents every Australian start-up should consider, and why professional legal drafting (and not AI) is essential.

1. Company Constitution

Sets out the rules for governing your company, including director powers, shareholder rights, and meeting procedures. A well-drafted constitution tailored to your business can prevent future disputes and ensure compliance with the Corporations Act .

2. Shareholders Agreement (or Partnership Agreement)

Defines the rights and responsibilities of founders and investors. Covers share transfers, dispute resolution, exit strategies, and decision-making processes. Essential for start-ups with multiple founders or external investors to avoid misunderstandings and future conflicts.

3. Employment Agreements and Contractor Agreements

Clearly set out roles, duties, remuneration, confidentiality, and intellectual property ownership for employees and contractors. These agreements must comply with Fair Work legislation and other employment laws. Proper agreements help prevent disputes and clarify expectations.

4. Confidentiality and Non-Disclosure Agreements (NDAs)

Protect sensitive business information, intellectual property, and trade secrets when dealing with third parties, potential investors, or collaborators. NDAs are critical in the early stages of product development and fundraising.

5. Intellectual Property (IP) Assignment Agreements

Ensure that any intellectual property created by founders, employees, or contractors is legally owned by the company. This is vital for protecting your brand, technology, and other intangible assets.

6. Website Terms & Conditions and Privacy Policy

Terms & Conditions set the rules for users interacting with your website or app, limiting liability and setting out acceptable use. A Privacy Policy is legally required if you collect personal information, ensuring compliance with the Australian Privacy Act. Both documents are essential for online businesses and e-commerce start-ups.

7. Supply, Service, and Client Agreements

Define the terms of business with suppliers, customers, and service providers. Include payment terms, delivery obligations, warranties, and dispute resolution mechanisms. Well-drafted contracts reduce the risk of costly disputes and ensure clarity in commercial relationships.

8. Employee Share Scheme (ESS) Documentation

If you plan to offer equity to employees, clear documentation is required to comply with tax and corporate regulations. Lawyers can help structure schemes that attract talent while protecting the company.

9. Fundraising and Investment Documents

Includes term sheets, share subscription agreements, convertible note deeds, and loan agreements. Proper documentation ensures compliance with fundraising laws and protects both the company and investors during capital raising rounds.

10. Company Registration and ASIC Filings

Lawyers can assist with registering your company, obtaining an Australian Company Number (ACN), and ensuring all ASIC filings are accurate and timely. This includes drafting documents required for company formation and ongoing compliance.

Why Engage a Lawyer and Not AI for These Documents?

Inaccurate or Incomplete Clauses or Drafting : AI can miss critical legal terms or misunderstand your business context, leading to unenforceable or non-compliant agreements or documents.

False Sense of Security : AI-generated contracts may look professional but can be legally flawed or outdated, increasing the risk of disputes.

Lack of Customisation : AI cannot account for your unique business model, industry, or risk tolerance, leading to generic agreements that don’t fit your needs.

Regulatory Compliance Risks : Australian laws are complex and change frequently. AI tools may not capture all compliance requirements, exposing your start-up to fines or litigation.

Poor Drafting from Bad Inputs : AI is only as good as the information provided. Vague or incomplete instructions can result in agreements that do not reflect your intentions.

Conclusion

While AI tools and templates can be helpful for simple, low-risk documents, start-ups in Australia should always engage an experienced lawyer to draft or review critical legal agreements and documents. This ensures your business is protected, compliant, and set up for long-term success. Investing in legal expertise at the outset can save your start-up from costly mistakes and disputes down the road.

Why Every Western Australian Should Have a Will: Essential Reasons for Estate Planning

Tue, 03 Jun 2025 12:34:16 GMT

The importance of having a valid Will in Western Australia cannot be overstated, with recent legislative changes highlighting the inadequacies of dying without proper estate planning. While approximately 50% of adult Australians currently lack a valid Will, the consequences of intestacy can be severe, ranging from unintended asset distribution to family disputes and significant legal complications. The Western Australian government's recent updates to intestacy provisions demonstrate recognition of these problems, yet these statutory defaults remain insufficient substitutes for personalized estate planning that reflects individual circumstances and wishes.

Ensuring Your Property is Distributed According to Your Wishes

The fundamental purpose of a Will is to provide clear direction for how your property should be distributed after death, ensuring your intentions are legally recognised and implemented. A Will serves as a legal document that sets out how you wish your property to be distributed after you die, allowing you to specify exactly which beneficiaries should receive particular assets. Without this crucial document, state law will decide what happens to your property through statutory intestacy provisions, which may not align with your personal preferences or family circumstances.

The importance of this control becomes particularly evident when considering the diverse nature of modern families and relationships. Your Will can ensure that a long-term partner receives appropriate provision, that estranged family members are excluded from inheritance, or that charitable organisations benefit from your estate. The legal framework in Western Australia recognises that individuals should have the autonomy to make these decisions during their lifetime, rather than having their wishes determined by generic statutory formulas.

Furthermore, a Will provides certainty and clarity for your loved ones during an already difficult time. When family members understand your explicit wishes, it reduces the likelihood of misunderstandings and provides comfort that they are honouring your intentions. This clarity becomes especially important in complex family situations where multiple relationships, step-children, or business interests are involved.

Avoiding the Limitations and Problems of Intestacy Laws

The statutory intestacy provisions in Western Australia, governed by the Administration Act 1903 (WA), present significant limitations that demonstrate why relying on these default rules is problematic for most families. Recent changes to these laws in March 2022 illustrate both the inadequacy of the previous system and the ongoing limitations of any standardized approach to estate distribution. Under the updated intestacy rules, a surviving spouse with children now receives the first $472,000 of an estate plus one-third of the remainder, while a spouse without children receives the first $705,000 plus half of the remainder.

However, these statutory distributions often fail to address the unique circumstances of individual families, as evidenced by real-world examples from legal practice. One particularly troubling case involved a wife of 17 years who had to share the bulk of her husband's estate with an estranged but independently wealthy stepchild, leaving her unable to pay the mortgage on the family home. Another case saw a parent powerless as an ice-addicted stepchild received a payout of a quarter of a million dollars when her husband died. These examples demonstrate how intestacy laws can produce outcomes that no reasonable person would intentionally choose.

The intestacy system also creates procedural complications that can be avoided with proper Will planning. When minor children are involved in intestacy situations, any agreements regarding distribution require Supreme Court approval, adding time, cost, and stress to an already difficult process. Additionally, survivors often find themselves in the position of having to negotiate with children and stepchildren or bringing proceedings under the Family Provision Act 1972 (WA), creating family conflict and legal expenses that could have been avoided with proper estate planning.

Protecting Your Family Through Proper Planning

A Will provides essential protections for your family members that extend far beyond simple asset distribution, particularly in relation to minor children and preventing family disputes. One of the most critical functions of a Will is the ability to nominate guardians for your minor children, ensuring that if both parents die, there is a clear legal framework for who will care for the children. Without this nomination, the courts must make decisions about guardianship based on their assessment of the children's best interests, which may not align with the parents' preferences.

The appointment of an appropriate executor is another crucial family protection measure that a Will provides. Your executor is responsible for the distribution of your estate in accordance with your Will, and choosing someone you trust ensures that your estate is managed competently and in your beneficiaries' best interests. This appointment can prevent family conflicts by providing clear authority and responsibility for estate administration, rather than leaving family members to navigate complex legal requirements without guidance.

Estate planning through a Will also helps protect your family from the emotional and financial stress that commonly accompanies intestacy situations. When someone dies without a valid Will, the resulting uncertainty is more likely to result in significant delays, additional costs, and disputes between family members regarding estate administration. These problems occur at an already difficult and stressful time, compounding the grief and emotional burden on surviving family members. A well-prepared Will minimises these risks by providing clear instructions and legal authority for estate administration.

Preventing Unintended Consequences from Life Changes

Marriage and divorce create particular vulnerabilities for estate planning that demonstrate the importance of maintaining an up-to-date Will throughout your life. In Western Australia, marriage can invalidate your existing Will unless the Will was made in contemplation of that specific marriage. This means that couples who marry without updating their estate planning documents may find themselves in an intestacy situation despite having previously executed valid Wills.

The interaction between divorce and Wills is equally complex and potentially problematic. While divorce does not automatically invalidate a Will in the same way marriage does, divorce can invalidate your Will under specific circumstances in Western Australia. Specifically, divorce invalidates your Will if there is no evidence of contrary intention in the Will, the divorce takes effect under the Family Law Act 1975 (Cth), and the marriage ended on or after 9 February 2008. This creates a significant risk that divorced individuals may unintentionally leave their estate to former spouses unless they proactively update their estate planning documents.

These legal complexities surrounding marriage and divorce underscore the importance of not only having a Will but also maintaining it throughout your life as circumstances change. Regular review and updating of your Will ensures that it continues to reflect your current wishes and family situation, preventing unintended beneficiaries from receiving your estate due to outdated documentation.

Expressing Personal Wishes and Practical Arrangements

Beyond asset distribution, a Will provides an opportunity to express important personal wishes and make practical arrangements that can provide comfort and guidance to your family. A Will can include instructions about whether you wish to be buried or cremated, whether you wish to donate your organs, and other personal preferences that help your family understand and honour your values. These provisions can be particularly meaningful during the grieving process, as they provide clear guidance about your wishes during a time when family members may be struggling to make difficult decisions.

The ability to address financial arrangements through your Will extends beyond simple asset transfers to include practical matters such as debt forgiveness and executor compensation. You can use your Will to forgive debts owing to you, which can be particularly important in family business situations or when you have provided financial assistance to family members during your lifetime. Additionally, you can specify payment arrangements for your executor, recognizing the significant time and responsibility involved in properly administering an estate.

These practical provisions demonstrate how a Will serves as more than just a legal document for asset transfer—it becomes a communication tool that helps your family understand your values, priorities, and practical expectations. This comprehensive approach to estate planning ensures that your passing involves not only the legal transfer of assets but also the continuation of your care and consideration for family members' practical and emotional needs.

Conclusion

The creation of a valid Will represents one of the most important legal documents you will ever sign, with implications that extend far beyond simple asset distribution to encompass family protection, personal expression, and practical estate administration. The recent changes to Western Australia's intestacy laws, while improving upon previously outdated provisions, serve primarily to highlight the inadequacy of any standardized approach to estate planning that cannot account for individual circumstances, relationships, and values. The documented problems that arise when people die without valid Wills—including family disputes, unintended beneficiaries, and administrative complications—demonstrate that intestacy provisions should be viewed as an emergency backup rather than an acceptable alternative to proper estate planning.

For Western Australians, the legal framework provides clear opportunities to exercise control over estate distribution, protect minor children through guardian nominations, and express personal values through comprehensive Will provisions. However, this framework is only effective when individuals take proactive steps to create and maintain valid Wills that reflect their current circumstances and wishes. Given the complexity of marriage and divorce implications, the importance of executor selection, and the ongoing changes in family relationships throughout life, regular review and updating of wills becomes as important as their initial creation.

The evidence strongly supports the conclusion that every adult Western Australian should prioritise the creation of a comprehensive Will as a fundamental responsibility to their family and loved ones. While professional legal assistance is recommended to ensure proper execution and comprehensive coverage of estate planning needs, the alternative—leaving these crucial decisions to statutory default provisions—represents an unacceptable risk to family welfare and personal autonomy that can be easily avoided through proper planning.