Morris Succession Lawyers

15/05/2026

What a week for tax law and trusts!

We have been fielding enquiries from concerned clients, and advisors regarding the proposed changes to the taxation system in the Federal Budget.

Prior to the Budget it was apparent that there would be a focus on changes to the CGT discount, however there have been a number of surprises in the Budget that were not anticipated and represent radical changes from the existing arrangements.

The loss of the pre-CGT exemptions for assets acquired prior to 20 September 1985 was one such surprise. This has long been part of the tax system and it is difficult to understand how measures that have retrospective action can be justified in any reforms.

At this early stage it appears that "bucket companies" will no longer be a useful structure as part of a discretionary trust arrangement. Formerly, discretionary trusts could distribute income to a company and the company would pay tax on the income at corporate tax rates. The company could then either retain the income to invest further or ultimately declare dividends to individuals. Those individuals would receive a franking credit for the tax paid by the company, and if their personal taxable income was higher than the corporate tax rates, then they would be liable for an additional "top up" tax above the corporate rate.

The proposed changes now result in the trustee of the discretionary trust paying tax at 30%, but if a company receives the income as a distribution then it too pays additional tax without any tax credit for what the trustee has paid. We have seen this variously reported as resulting in the effective tax rate as being somewhere between 51% and 71%. By any measure this is untenable.

In the estate planning context, the full details have not been released, but it appears that discretionary testamentary trusts may be subject to the 30% flat tax rate, but not fixed trusts within Wills. This may leave some benefits from a asset protection perspective remaining, and some tax benefits will remain with properly structured testamentary trusts.

Morris Succession Lawyers (subject to instructions) draft our testamentary trusts to include inbuilt flexibility and variation mechanisms, which will allow our clients to nagivate dramatic changes, akin to this week's Budget. These include the ability to bypass discretionary trusts to corporate beneficiaries or fixed trusts, or to vary the terms of existing discretionary trusts to comply with transitional arrangements.

We will continue to monitor the proposed changes closely, but if you have any questions or concerns then please feel free to reach out! The full impact of any changes will not be clear until the legislation is prepared and if/when it passes Parliament.

19/04/2026

Congratulations to the on their first Premiers Plate! We hope that our small contribution towards the matchday suppport and atmosphere helped tip the the scales

19/04/2026

19/04/2026

Congratulations to the Newcastle Jets on their first Premiers Plate! We hope that our small contribution towards the matchday support and atmosphere helped tip the the scales

17/04/2026

Bank of Mum & Dad 🏦

With the cost of living and general cost of property in Australia, it is unsurprising that many parents look to assist their children into the property market if they have the means to do so.

Reportedly 60% of first home buyers in Australia receive some form of financial assistance from their parents.

It is important that when providing assistance to your children that careful consideration is given to how the payment is structured, taking into account the potential estate planning consequences and what would happen in the event that the children subsequently divorces/ has a family law property settlement down the track.

We recommend that parents consider using documented loan agreements, to safeguard funds from future property settlements. If the loan is considered a genuine liability, then these funds would be excluded from the matrimonial property pool.

In Anwar and Melat (2020) 62 Fam LR 337, the court iterated that the characterisation of an advance as a loan depends on objective evidence, such as the existence of documentation, terms of repayment, and the intention of the parties at the time of the transaction.

The absence of formal documentation or clear terms does not automatically negate the existence of a loan, but the party asserting the loan must provide sufficient evidence to demonstrate an intention to create a legally enforceable relationship.

11/03/2026

We're very pleased to announce that Gilbert Olzomer has joined the Morris Succession Lawyers team as a Senior Associate.

Gilbert brings a wealth of experience and expertise in litigation and disputes after a decade of practice with some of Australia's best law firms.

He will join Brooke Genders and Richard Morris in our estate litigation team, as well offering specialised expertise in commercial litigation to our valued clients.

Gilbert is available for appointments at both our Port Macquarie and Laurieton offices, and further afield by appointment.

10/03/2026

Mutual vs Mirror

What's the difference between a "Mutual Will" and a "Mirror Will"?

Mutual Wills are created in the context of a contract or agreement between two persons to structure their respective Wills in a particular way. Usually, upon the death of one person the survivor cannot change the terms of their Will. Any changes can only be effected whilst both persons are alive and by mutual consent.

Mirror Wills are far more common, and many couples execute wills that "mirror" each other, in the sense that the gifting provisions are the same in each Will but simply mirrored. However, there is no contract and either party may change their will at any time - even when one has passed away.

20/02/2026

🗣️ Due to continued growth, Morris Succession Lawyers is excited to announce that we have secured the services of an experienced lawyer to join our team from 9 March.

Our new signing joins our team of 13 from the very top tier of the Australian legal profession, bringing a high level of talent and expertise in the field of litigation and disputes.

More details to follow....

13/02/2026

What is a "Benjamin Order"?

No it doesn't relate to a clock, a cynical literary donkey, or a song from the early 70s.

Benjamin orders pop up in estate matters where a beneficiary cannot be found, or its not known whether they are alive or deceased, and the executor has made reasonable efforts to find the person.

A Benjamin order gets it's name from the English case of Re Benjamin; Neville v Benjamin [1902] 1 Ch 723. It protects an executor from personal liability in distributing an estate a certain way.

For instance if a 50% beneficiary cannot be located and the executor has tried all available methods to find them (within reason), then they can approach the Court for a Benjamin order authorising them to distribute the estate as if the beneficiary did not outlive the deceased.

The Court order protects the executor from being sued if that beneficiary is subsequently found.

Such circumstances are not common, but can arise in estates where there is no Will and the relatives are distant or the family has not communicated for a long time.

Morris Succession Lawyers has experience in such matters, and can assist executors navigate the process.

Contact us on (02) 6584 1185 or [email protected] if you have any estate related queries.

Picture: Sydney at night after one of two estate litigation mediations this week for our Principal Solicitor, Richard Morris.

23/01/2026

Presumption of Death / "Inferred" Death

In NSW we a legal principle that if a person is not heard from for a period of 7 years then it can be presumed that they are deceased. It is up to the applicant to show that the presumption should apply, usually by detailing the people that the missing person would normally have been in contact with and other evidence such as untouched bank accounts or social media.

Probate can then be granted in relation to the missing person's estate and there assets administered in accordance with the relevant Will or according to intestacy if there is no valid Will.

In contrast to the 7 year rule, there are other instances where the court can "infer" that a person has died due to the circumstances.

Examples include:

* a diver who appeared to be in trouble underwater and subsequently disappeared without their body being found;

* a sailor who disappeared with their vessel during a storm;

*a pilot who disappeared in their plane after taking off in Java escaping the Japanese invasion.

In these types of cases, the court does not need to wait the 7 years, but can infer the death much sooner allowing the relatives or executors to proceed with the estate administration in much more timely manner.

Of course if the "deceased" turns up alive and well, then the Grant of Probate is revoked!