It’s a matter of trusts
Overhaul is long overdue
“Trust no-one, Mr Mulder.” — The Well-manicured Man, X Files
Good advice, at least for agents Scully and Mulder in the classic TV series The X-Files.
It might, however, be difficult to be guided by it here in Queensland, at least when it comes to legal trusts, because our Trusts Act 1973 (Trusts Act) does not set out the elements of what constitutes a valid trust.
Indeed, that is far from the only area of our Trusts Act that requires attention, a point that Queensland Law Society has made many times in the past. Our Trusts Act was passed in 1973, and although like all legislation of that vintage it has had some minor alterations, it really needs a major renovation. Our Trusts Act suffers from the lack of a long-overdue overhaul.
A lot has changed in the world since 1973 in many areas. In terms of trusts, the increase in their use, and the forms they can take, has been exponential. Trusts were once the province of monied families seeing to preserve their wealth for future generations, or perhaps to hold money for charitable purposes.
Now, myriad small businesses — from builders to medical centres to newsagents — use trust vehicles for many and varied purposes. What amendments there have been have evolved in fits and starts, a piecemeal process that has produced legislation which is hardly fit for the purpose it serves. Some essential pieces of trust law, like the rule against perpetuity, exist in entirely separate Acts (in that case the Property Law Act 1974), which makes no sense at all.
Legislative reform is an ongoing obligation and the failure to keep pace with the world causes problems. For example, when the Trusts Act came into force in 1973, the life expectancy for Australians was around 72 years; in contrast, men who were 65 in 2017 can expect to live almost another 20 years, and women another 22 and a bit.*
In 1973, whether or not a trustee could purchase an interest in a retirement home was not a pressing question; now, it is a priority. This has become acute because the disparity between healthy life expectancy (living well without disease or pain) and total life expectancy means that retirement villages with care facilities will be high on everyone’s shopping list.
The saddest part is that the work on this has been done, and a new Trusts Act should have been passed long ago. The Society made substantive submissions to a review on this issue back in 2013, and in 2017 Attorney-General Yvette D’Ath addressed the QLS Symposium and said she was putting the legislation before Parliament — and still we wait.
It is time for the Attorney to make good upon that promise and ensure that we have a modern and working Trusts Act. It is doubly important given the many legislative challenges that are lining up for attention, especially in relation to the issues above regarding Australians living longer.
While we all hope that exercise, diet and medical advances will help us live well and capably for most of our lives, it is inevitable that with age comes frailty. Most children, of course, have only their parents’ best interests at heart, but some see only dollars as we begin the largest transfer of wealth in the world’s history. The prosperous baby boomer generation is now distributing its hard-earned treasure, and naturally there are some sharks circling.
It isn’t always relatives either; in the recent New South Wales case of Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 the propounder of a suspect (and ultimately discredited) will was found to be no relation whatsoever to the deceased, despite claiming to all and sundry that she was the deceased’s daughter. The fact that she got as far as being granted probate before the NSW Court of Appeal set things right is deeply concerning; it is clearly time to beef up our laws with respect to elder abuse.
Probably the most divisive legislative issue we will face in the near future also has the potential for elder abuse: voluntary assisted dying. Again, we are now living longer which is wonderful, but it also allows us to develop conditions that — for some — make life no longer worth living. Whereas dying with dignity was not much of an issue when shorter life spans were the norm, it is now a reality we must confront.
It is not only older Australians faced with this traumatic choice; such conditions can strike people at a tragically young age. This is all the more reason that we need to address this question as a priority. The Victorian legislation, on which any Queensland version would be largely based, contains significant checks and balances to ensure people are protected; naturally any legislation here would require similar protections.
The Society cannot, of course, make this decision for its members or indeed for the general public. Our role is to start these conversations, lead the discussion and collate the views of our members, as we have done with previous complex issues such as same-sex marriage. In a democracy like ours it is important that all voices are heard and all points of view considered. Nobody has a monopoly on wisdom with such a personal and potentially divisive question.
In fact, I would suggest that the role of the legal profession itself is to lead this discussion in the community — not via imposing one view or position on people, but by framing the issues and guiding the debate. Just as we might do before an administrative review tribunal, our role here is to assist our community in coming to grips with the facts around this vexing question, to inform them fully so that whatever debate occurs is done with logic and facts, not emotion and intractable positions. That is our role, so let’s get to it.
Bill Potts
Queensland Law Society President
president@qls.com.au
Twitter: @QLSpresident
LinkedIn: linkedin.com/in/bill-potts-qlspresident
This story was originally published in the October 2019 edition of QLS’s flagship magazine, Proctor. To more legal news and views in this publication, subscribe to Proctor today.
