Archives for September 2012

Memoranda of Wishes

A Memoranda of Wishes (MOW) also known as a Letter of Wishes is a document which supplements a Will to assist the Executor and/or the Trustee of a Testamentary Trust to comply with a Testator’s wishes for the distribution of the estate.  The MOW does not form part of the Will itself, and is usually not available to the beneficiaries. [Read more…]

What is a Testamentary Discretionary Trust and why would I want one?

A traditional will leaves the estate to the beneficiaries equally, and contains further instruction in the event of the beneficiaries predeceasing the testator.  It may also contain specific bequests requests relating to the testator’s personal property.

This will, while effective an effective estate planning tool for those in uncomplicated circumstances, leaves the inheritance open to the creditors or ex-partners of beneficiaries in the event of financial difficulty or relationship break down.  There are also be adverse tax implications if a beneficiary invests their inheritance; if the beneficiary is earning other income, the income from the estate investment is taxed in addition to the beneficiary’s marginal tax rate. [Read more…]

Is your trust deed still not Bamford compliant?

If your trust deed was created more than two (2) years ago then chances are it does not comply with  the principles espoused in Commissioner of Taxation v Phillip Bamford & Anor Phillip Bamford & Anor v Commissioner of Taxation [2010] HCA 10 (Bamford). [Read more…]

Importance of retention of title clauses in commercial contracts

What is a retention of title clause?

A retention of title (RoT) clause is typically contained within a sale agreement or a company’s standard terms of business (TOB), whereby another business has possession of certain goods (Collateral), but does not acquire the legal title until the purchase price is paid in full. [Read more…]

When is your licensee really a franchisee?

Franchise versus distributorship

We are often asked what the difference is between a business operated under licence governed by a distribution agreement and one operated under a franchise agreement.   In short, the franchise relationship is predicated on control and breadth of influence, while a distribution agreement is narrower in scope and does not concern itself with marketing and merchandising. [Read more…]

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