Keiran Breckenridge GAICD, RITP

Do mutual wills displace claims for family provision? Two recent Western Australian Supreme Court decisions (Abbott v Abbott [2025] WASC 30, and Butler v Butler [2025] WASC 79) consider claims for family provision where mutual wills agreements were in place. Applying the High Court decision of Barns v Barns (2003) 214 CLR 169, both WASC decisions held that the mutual will agreement did not prevent a claimant’s claim under the Family Provision Act 1972 (WA) and the court has the discretion to make orders for provision out of the estate of the deceased. Abbott v Abbott [2025] WASC 79 concerned claims for provision by two adult daughters out of their father’s estate.  In this case the mutual wills agreement was yet to be performed by the surviving spouse.  The court made an award of provision for one claimant but determined that it did not have sufficient information regarding the second daughter’s claim.  The Court observed that it did not consider the Court’s award was a basis for the surviving spouse to depart from the mutual wills agreement. Butler v Butler [2025] WASC 79 was a successful application for an extension of time to bring a claim for family provision.  The case is unique because the applicant was the beneficiary of the entire estate under the deceased's final will.   In this case the mutual wills agreement had been breached by the creation of an inconsistent will by the deceased (the surviving testator under the agreement).  The court explained that the mutual wills agreement created a floating obligation over the property passing to the surviving testator. This obligation crystallised into a constructive trust on the death of the surviving testator. Consequently, the estate passing under the surviving testator’s final will was limited to the assets which were not the subject of the constructive trust. 

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Hot off the press - big changes to Div 296. More details to come but proposed changes according to the AFR include: - The total concessional tax rate applied to earnings on balances between $3 million and $10 million will be 30 per cent, up from 15 per cent. - The total concessional tax rate applied to earnings on balances over $10 million will be 40 per cent, up from 15 per cent. - Both the $3 million and $10 million super balance thresholds will be indexed to maintain relativity with the Transfer Balance Cap that was introduced by the Coalition. - Adjust the earnings calculation so the concessional tax rates on large balances only apply to future realised earnings.  - Apply commensurate treatment to defined benefit interests to ensure equivalent impacts, with Treasury to consult on implementation details. - Extend the existing exemption for some judges to improve consistency across jurisdictions. This is a small change to respond to the latest legal advice and ensure more neutral treatment. - The changes will be delayed by a year until July 1, 2026

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Important news for Victorian trustees and their advisers: a bill to fix the risk that providing retiring trustees with a routine indemnity as to costs renders them liable of committing a serious criminal offence has been introduced to parliament. S 180 of the Crimes Act 1958 (Vic) currently makes it an offence or offer or give valuable consideration to a trustee or for a trustee to solicit or receive it, in relation to the appointment of a new trustee in its stead, unless done with Court or beneficiary assent). S 180 contained no express mens rea. In statutory interpretation, there is a rebuttable presumption that an element of mens rea, an “evil intention, or knowledge of the wrongfulness of the act” is an essential ingredient of any offence, even if the legislation is silent: see He Kaw Teh v The Queen. If not rebutted, the court is required to identify the mental element to be implied. The Supreme Court of Victoria in Diversa Trustees Ltd [2023] VSC 279 held that s 180 does not require a dishonest intention, only a specific intention to engage in the relevant conduct. However, the legislative history of the secret commission offences (incl the trustee offence) shows that they were not intended to apply to honest conduct. When the Secret Commission Prohibition Bill 1905 had its second reading, then Attorney-General, the Hon J M Davies, said: "the Bill was not intended to in any way prevent honest commissions being given or taken, but it was for the purpose of preventing a commission being given or obtained for the purpose of inducing a person to do something dishonest which otherwise he would not do."   In May 2024 I made a submission to the Victorian Attorney-General urging reform with retrospective effect to clarify that s 180 only applies to dishonest conduct. Other submissions to this effect were made including by Law Firms Australia through its Executive Director, Mitch Hillier, in consultation with Dr Nuncio D'Angelo.   The Justice Legislation Amendment (Miscellaneous) Bill 2025 was introduced on 1 April 2025. If enacted, it will achieve this reform. On its Second Reading, the Attorney General of Victoria, Sonya Kilkenny, said:   “The reforms will ensure that only conduct done for a dishonest or otherwise corrupt purpose and with the requisite intent or knowledge will be captured by section 180. The phrase ‘a dishonest or otherwise corrupt purpose’ is intended to mean dishonest conduct or conduct done with a wrongful or improper purpose. It should not capture good faith transactions.” 120 years after the Secret Commissions Prohibition Act 1905 included a trustee offence, this Bill will clarify its purpose as criminalising only dishonest conduct and bring s 180 into line with 2023 reforms in NSW to s 249E. Hopefully these will pass soon. Corrupt conduct must a serious criminal offence. But trustees who are not engaged in any improper or dishonest practice need to be relieved of the risk of committing a crime.

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FCFCOA Update: New Requirements for Filing Consent Orders A reminder, from 31 October 2025, the Federal Circuit and Family Court of Australia (FCFCOA) has updated its requirements for filing Applications for Consent Orders. All applications must now include both a signed PDF and an unsigned Word (.docx) version of the proposed orders. The text in the Word document must match the signed PDF, and applications that do not include both versions will not be accepted. This change applies to both legal practitioners and self-represented litigants. It aims to improve the quality and accessibility of published orders, ensuring they are easier to view and share. If you are unable to provide a Word version, the Court can provide guidance via email or live chat. For full details, see the FCFCOA update: https://lnkd.in/g5iihj6j #FamilyLaw #ConsentOrders #FCFCOA #LegalUpdates #CourtProcedures #SelfRepresentedLitigants

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Members of Parliament (MPs) are reviewing a petition that seeks to limit loan interest so it never exceeds the original principal, citing the steady rise of unscrupulous lenders with unjustly high repayment charges. The petition, filed by senior lawyer Allen Waiaki Kishore, calls for amendments to the Consumer Protection Act to formally codify the in duplum rule, which already exists in Section 44A of the Banking Act but remains weakly enforced. The in duplum rule is a longstanding legal principle that states if unpaid interest equals the principal, no further interest may accrue until part of the principal is repaid. Historically applied to banks, recent court decisions in Kenya have extended the rule to all lenders, including microfinance institutions, SACCOs, digital lenders, and even private individuals. https://lnkd.in/dXnkZc4W

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A significant ruling from the Victorian Court of Appeal has clarified the legal boundaries around directors’ duties and the use of the Fair Entitlements Guarantee (FEG) scheme in insolvency scenarios, although some questions remain.   The Commonwealth DPP has lost an argument in proceedings brought against the directors of Bruck Textile Technologies, in which the directors were alleged to have breached the criminal liability provisions of the Corporations Act 2001 (Cth) in 2014 by entering into an agreement with the intention of avoiding or preventing the recovery of employee entitlements.   The prosecutor alleged that the directors orchestrated the sale of the company’s business for $1 to a newly formed entity under their control, transferring most employees but leaving 58 employees behind with nearly $4 million in unpaid entitlements. The directors expected the entitlements to be paid out by FEG upon the subsequent voluntary liquidation of the former employing entity (which is ultimately what happened).   The prosecutor contended that the directors knew the company was insolvent and structured the transaction expecting those employees to be paid under the taxpayer-funded FEG scheme, rather than by the company itself, and that this was a breach of the relevant Corporations Act provisions.   However, the Court found that the directors' conduct by entering into the transaction did not breach the Corporations Act. Crucially, it held that relying on the FEG scheme does not constitute an intention to prevent recovery of the employees' entitlements because recovery via FEG still constitutes recovery of the entitlements for the purposes of the Corporations Act as it was in effect in 2014.   🔍 Things to note: - The relevant provisions of the Corporations Act were amended slightly in 2019 (which was after the conduct that was the subject of these proceedings had occurred). The Court noted that the 2019 amendments may have an impact on its analysis, although did not express a concluded view on this issue. This may open the door for future litigation on this issue. - The Commonwealth Government recently conducted a public consultation in relation to "corporate misuse of the Fair Entitlements Guarantee." While the outcome of the consultation is yet to be announced, this decision may influence the Government's reform agenda in respect of the FEG.

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Judgment Just In: May v Costaras [2025] NSWCA 178 The Court of Appeal has dismissed an appeal from the Equity Division. The Court held that the primary judge did not err in finding that the parties held their property on a joint endeavour constructive trust. In a separate concurrence, Bell CJ noted the use of Generative AI by the respondent and emphasised the need for judicial vigilance in the use of Generative AI, especially but not only by unrepresented litigants. Read the judgment here: https://lnkd.in/gjGfxxBC Summary: https://lnkd.in/g8UWdRdM

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The Australian Financial Review today has an article about long hours in law firms and "billable" targets. Joseph Friedman says that lawyers in Australia are being ripped off, because if you work these same targets in the UK, you get paid a lot more. He outlines what we all know is detrimental to culture and mental health in law firms - being solely assessed on what you are able to bill in a day. Other firms have other practices. For example, Marque Lawyers "evaluate staff like a normal business. There are no billable targets. Instead, partners evaluate lawyers' work by observing the quality of the work and the time taken to complete it. The lawyers work hard, but when they're finished they go home. And when they're quiet, there's less pressure to manufacture billing." I think we do that at Justitia Lawyers & Consultants, and this article is a good reminder of how valuable our culture is and not to take it for granted. I have my fellow partners to thank for that, and other firms who are trailblazers in showing there are other viable models - viable for everyone.  https://lnkd.in/g_U6gJ6V

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