How Can A Special Disability Trust Help Your Child?

How Can A Special Disability Trust Help Your Child l Canny Group

Having children can be one of the most rewarding, challenging, stressful and enjoyable (most of the time) rollercoasters of life!  Caring for children from the moment they’re first put into your arms right through to having an empty nest, there is nothing that you wouldn’t do to ensure that your children have the best opportunities that life can offer.  Having a child with a disability is no different.  One of the biggest concerns that we see from our clients that have children with disabilities, is what is going to happen to them when their parents pass away.  Who is going to pay for their day to day living expenses?  Who is going to ensure that they are given the reasonable care?  Where are they going to live?  These are just some of the concerns that these parents are faced with!  We have put together this article to help you gather some information and understand on everything you need to know when it comes to Special Disability Trusts, introducing; How Can A Special Disability Trust Help Your Child l Canny Group.

What Is A Special Disability Trust (SDT)?

A Special Disability Trust enables family members to contribute money and/or property into trust to be used for the reasonable care and accommodation needs of a beneficiary who is considered to have a sever disability.  Under this arrangement, the money and assets held in the Special Disability Trust can be used for the benefit of the beneficiary without impacting their entitlement to a Disability Support Pension.  This trust can be created now or within your Will to be established upon your passing.

Who Is Eligible To Be A Beneficiary Of A Special Disability Trust?

A beneficiary is assessed by the Department of Human Services (DHS) and must be considered to have a ‘severe disability’ under section 1209M of the Social Security Act 1991.

A persona with a sever disability is a person:

  • Who has reached 16 years of age:
    • Whose level of impairment would qualify for or is already qualified and receiving the Disability Support Pension
    • Who has a disability that would, if the person had a sole carer, qualify the carer for Carer Payment or Carer Allowance
    • Who is living in an institution, hostel or group home providing care for people with disabilities and which funding is provided; and
    • Who has a disability and as a result that person is not working or has no likelihood of working more than seven hours per week at the relevant minimal wage


  • A person under 16 years of age:
    • Who is a profoundly disabled child as defined in Social Security Act section 197(1) who has a beneficiary immediately before 1 July 2009


  • A child under 16 years of age:
    • Who is a person with a sever disability or a severe medical condition, and
    • Another person (the carer) has been given a qualifying rating of ‘intense’ under the Disability Care Load Assessment (Child) Determination for caring for the child, and
    • A treating health professional has certified in writing that, because of that disability or condition the child will need personal care for six months or more and child care is required to be provided by a specific member or persons.

The initial step should be to verify with DHS or the Department of Veterans’ Affairs (DVA) that the beneficiary meets the definition of ‘severe disability’ before establishing a Special Disability Trust.

How Is A Special Disability Trust established?

A Special Disability Trust may be set up in two ways: (a) by family members during their lifetime through the execution of a deed, or (b) through the creation of a Will incorporating Special Disability Trust provisions.

For option (a) the beneficiary must meet the criteria above prior to entering into the Special Disability Trust.  For option (b) the assessment of eligibility occurs after your passing and will only be created if the beneficiary is considered eligible.

Why Choose a Special Disability Trust?

A Special Disability Trust provides the following benefits to the beneficiary:

  1. Beneficiary can enjoy the benefit of significant assets (within limits), without detriment to their entitlement to Disability Support Pension
  2. It provides asset protection for the beneficiary
  3. It eliminates or reduces the need for the beneficiary to have a Will of their own
  4. It provides certain tax, duty and gifting exemptions (within limits) for the transfer of assets into a Special Disability Trust by family members
  5. Income from the assets of a Special Disability Trust will not be counted for the assessment of the income test to the beneficiary of the trust
  6. The assessable assets of that trust of up to $681,750 (as at 1 July 2019 indexed annually) plus the main residence of which the beneficiary reside will be disregarded for the assessment of the assets test

Can Everything Go Into A Special Disability Trust?

A Special Disability Trust can hold on trust a residence (to any value) where the beneficiary resides and up to $681,750 of other assets (as at July 2019) without any impact to the beneficiary’s entitlement to the Disability Support Pension.

Therefore, $681,750 of assets plus the home in which the beneficiary lives will not be included in the assessable assets of the beneficiary.  Any value above this amount will be assessed against the assets of the beneficiary.

Are There Any Restrictions On What Can Be Gifted To A Special Disability Trust?

Yes, there are some restrictions on what a beneficiary or their partner can gift to a Special Disability Trust.

Two types of assets cannot be contributed to the trust:

  1. Any asset transferred to the trust by the beneficiary or their partner unless
    1. The asset is all or part of a bequest or a superannuation death benefit, and
    2. The bequest or superannuation benefit was received not more than three years before the transfer;
  2. Any compensation received by or on behalf of the beneficiary.

These rules are intended to preserve the existing treatment of compensation payments and prevent the beneficiary from putting their own property into a SDT in order to qualify for income support, rather than using it directly for their own support.

How Is The Special Disability Trust Managed?

A trustee/s are appointed by a deed to operate the trust for the benefit of the beneficiary.  The trustee/s cannot be the beneficiary.

The trustee/s manage the investment of assets and application of assets/income toward the accommodation and medical needs of the beneficiary.  Discretionary expenditure is limited to $12,250 a year (as at July 2019 indexed annually).

The beneficiary continues to receive and use their Disability Support Pension as normal.

Assets can be gifted to trust (by family members, or from an estate of deceased family member) and upon death of beneficiary, the trust is wound up and the balance of the trust is distributed as per direction of initial contributor (family member).

What Are Reasonable Care Needs?

A care need is considered reasonable if:

  • The need arises as a result of the disability of the beneficiary; and
  • The need is for the primary benefit of the beneficiary; and
  • The need is met in Australia

The following are some examples of reasonable care needs (please note, these are only some of the examples and should not be regarded as a definitive list):

  • Specialised food specified by a medical practitioner as essential for the beneficiary’s health;
  • Mobility aids, prostheses and positioning aids required for, or because of, the beneficiary’s disability;
  • Sleeping and sensory aids required for, or because of, the beneficiary’s disability;
  • Personal care aids required for, or because of, the beneficiary’s disability;
  • Communication devices (including computers) that are essential, or that have been modified, because of the beneficiary’s disability;
  • Modified vehicle, if required for, or because of, the beneficiary’s disability;
  • Modification to vehicle, if required for, or because of, the beneficiary’s disability;
  • Transport required for, or because of, the beneficiary’s disability;
  • The daily care fee and any additional itemised fees charged by an approved provider in relation to the beneficiary’s care and accommodation in a residential care service; and
  • Medial related and dental costs of the beneficiary

What Are Reasonable Accommodation Needs?

An accommodation need of the beneficiary is considered reasonable if:

  • It arises as a result of the disability of the beneficiary; or
  • The need to pay for property ( whether purchased in part of full, or rented) is for the accommodation needs of the beneficiary and the property is acquired or rented from a person who is not an immediate family member of the beneficiary.

The need to pay rates and taxes on a property is a reasonable accommodation need if the property:

  • Is owned by a Special Disability Trust; and/or
  • Is used for the accommodation of the beneficiary of the Special Disability Trust

The following are examples of reasonable accommodation needs (please note, these are only some of the examples and should not be regarded as a definitive list):

  • Modification to the beneficiary’s place of residence arising from his or her disability;
  • Payment for the purchase of the beneficiary’s place of residence if the payment is not make to an immediate family member of the beneficiary;
  • Payment of rental for the beneficiary’s place of residence if the payment is not made to an immediate family member of the beneficiary;
  • Any itemised fees which specifically relate to the accommodation of the beneficiary residing in a residential care service

Maintenance of trust property assets means keeping the property in comparable condition/s and/or to a condition that it is safe for use.  Maintenance does not mean replacement, unless it can be proven in writing by a specialist in the specific field that the item needs to be replaced as it cannot be fixed.

What will be reasonable in each case will depend on the level of disability and the needs of the person concerned.  The most important consideration is what the beneficiary requires by way of accommodation and care.

How Can Others Contribute To The Special Disability Trust?

Any gift to the trust must be unconditional and made without expectation of receiving any payment or benefit in return.

Anyone can give to the Special Disability Trust.  Any gift to the trust, whether it is from an immediate family member or any other person, must be unconditional and made without expectation of receiving any payment or benefit in return.

For anyone eligible for the gifting concession, they can gift up to $500,000.  For those note eligible for the concession, they can only gift up to $100,000.

The gifting concession is only available to an immediate family member who:

  • Receives a social security pension and has reached age pension age; or
  • Receives a service pension and has reached the veterans’ pension age; or
  • Receives a veterans’ income support supplement and has reached the qualifying age for the payment

Immediate family members’ of the beneficiary are:

  • Parents (including adoptive and step-parents);
  • Legal guardians of a person with a severe disability who is less than 18 years only;
  • Grandparents; and
  • Brothers and Sisters (including adoptive and step-brothers and sisters and half brothers and sisters)

To use the concession, you must be an immediate family member who is receiving a qualifying payment and inform of the DHS or the DVA of your intention to use the concession.  Where the concession has been fully used, additional contributions by immediate family members will be assessed under the normal gifting rules.

What Happens To The Assets Of The Special Disability Trust After The Passing Of The Beneficiary? 

If the trust deed allows, the people who have contributed funds to the trust can specify what they want to happen to any surplus property derived from their contribution.

For example, it could be returned to them (if they are still alive) or to their executors to be dealt with under their Will.  Or they could nominate their children, other family members or a charity to receive their share.

If the trust comes to an end or ceases to be a Special Disability Trust within five years of the property being transferred to the trust, that property may be subject to the gifting rule and may affect the income support entitlements of the person who gave the property to the trust.

What Other Factors To Take Into Consideration When Considering Setting Up A Special Disability Trust?

Just how useful a Special Disability Trust is likely to be is very much dependent on individual circumstances, and the plans and wishes parents have for their children, to take account of the disability.

It is important for you to obtain legal advice (including accounting or financial planning advice as well) before deciding whether a Trust is suitable for their individual situation and whether to set up nor, or via your will.  You may wish to look at the Special Disability Trust, Model Trust Deed to see if this could possibly be an option for you and your family, however, obtaining advice first is highly recommended and required.


At Canny Group, we have all the services that you need to to guide you to offer you advice on which path is the right to take for your individual circumstances.  We pride ourselves on ensuring Special Disability Trusts are set up with the wealth of knowledge our team have behind them for the people that need them the most.  Get in touch with our team today!

How To Find A Good Business Lawyer

Business Lawyers Not Just For Big Business – Legal Advice l Canny Group

Business Lawyers… Not just for big business!

Small or big, every business needs a lawyer.  Why?  You may ask.  Business lawyers provide crucial assistance to protect and prosper your business, from protecting against basic copyright violations to helping you enter complex business contracts, business lawyers will assist you with all legal matters facing your business.  We have put together everything you need to take into consideration when choosing the right lawyer for your business needs, introducing, Business Lawyers Not Just For Big Business – Legal Advice l Canny Group.

Whilst understanding what business lawyers do and their importance is easy, choosing the perfect business lawyer for you may be somewhat a daunting and exhausting task.


The first step to choosing the right business lawyer is to consider factors such as their qualifications, experience, reputation and personality.

Personal referrals provide some reliability and may be a good place to start, however, it is important to first consider the type of work conducted by the lawyer.  The lawyer that represented your friend in an employment matter may not be the best lawyer for your business.


Australian lawyers must be registered to practice law in Victoria and even if a lawyer is not listed as an accredited specialist in the area of business or commercial law it does not mean they are not experienced in that field.

The best business lawyers will have extensive experience in the specific area your business needs help in.

If you are unsure about which area your business needs help in or want a general business lawyer to help with future legal issues, consider comparing business lawyers in your area to determine which lawyer can offer the most effective services.  Perhaps you could ask the lawyer for examples of where they have assisted clients in the same industry as yours determine their reputation and experience.

Considering asking the following questions to determine their level of experience and suitability to your business:

  • What areas of law do you help most of your clients with?
  • What is the size and industry of your typical business law client?
  • How long have you been practicing business law?
  • If there are other lawyers working on my matter, what are their primary areas of practice?


Large law firms generally have a wide range of team members who have had experience in a variety of different matters, but this also means they have lots of clients they need to divide their time between.  If you are seeking a personalised services that prioritises your business, it may be beneficial to choose a smaller firm as they are likely to devote more time to working on your business and are able to provide a more personalised service.

There are pros and cons of both large and small firms.  It may be useful to consider the type of legal matters you will need to discuss with your lawyer and compare this to experience that lawyer can provide for you.

You may want to inquire about their current workload and how much time they can commit to you and your business.  This will give you a better understanding about the type of service you will be receiving.


If you have a specific legal issue, it is important to ask what legal steps are involved in your matter.  The lawyer is unlikely to give you a precise answer, however, it will give you an idea of the time required to finalise your matter, the information you will need to provide and the costs associated with the work that will be undertaken by the lawyer.


It is also important to ask the lawyer if they have any conflicts of interest with your business.  if the lawyer has several clients within the same business industry, there is a possibility that the lawyer may have represented one of your suppliers or competitors creating a conflict of interest.

Lawyers have a responsibility to not create a conflict of interest between any new client and past or current clients.  That way, all parties are represented equally and the service provided is not tainted with confidential information.


Once you have determined which firm or lawyer you would like to engage the next step is to determine if your lawyer’s personality will be suited to you and your needs.

Not only must your lawyer understand and be willing to learn about your business, their personality and style must match yours so that your instructions and their advice is understood by you.  It is vital that you feel comfortable with your attorney and their style of work.

Another important consideration is the lawyers level of professionalism.  Professionalism is more than providing prompt responses to your emails and returning your phone calls.  Your lawyer must be well prepared and work zealously to protect and grow your business, providing timely and accurate advice.

Avoid basing your decision on a phone call and consider meeting the lawyer in person.  During your consultation pay close attention to their professionalism and communication and that they have understood your needs and instructions.


We all know lawyers can be expensive and if you are a small business owner this could be one of your main concerns.  For this reason, it is important to discuss the fess structure with your potential business lawyer.

If you intend to work on several legal issues, ask if they are willing to charge a lower rate for increased volume of work and whether there are any additional charges for administration work such as postage and access to external resources.

Lawyers are required to provide you with a costs disclosure outlining expected costs; however, this is an estimate only and other costs may be added as the matter progresses.  Costs can be increased for unexpected work that needs to be completed or if you change your instructions.


The best business lawyer is the lawyer you feel most comfortable sharing your private information with and welcoming them to become part of your business.

We understand that running a business can be extremely successful.  Canny Group is able to offer their clients a cohesive service where clients have access to our lawyers, accountants, financial advisors and our NDIS plan managers.  Our team of professionals work together to ensure our clients receive the most efficient and effective advice to grow and protect all aspects of your business.  Our priority is to ensure clients receive high quality and stress-free advice.

Get in touch with our Legal team today for a free consultation to discuss your business plans and to find out how we can help you!


Malsha Fernando – Law Clerk

Katherine Taylor – Solicitor l BCriminology (History), LLB

A Vindication Of The Rights Of Women

A Vindication Of The Rights Of Women – Lawyer Geelong l Canny Group

Today we almost take for granted the legislative frameworks and social customs that support various women’s rights and freedoms, but it has not always been so.  There has been a dynamic struggle over the century that has become a dominant voice in our current times.  Back in 1792, Mary Wollstonecraft, a trailblazing advocate of implementing education and social equality for women, wrote down her political beliefs in her book A Vindication of the Rights of Women and has been described as the foremother of the struggle for the vote at a time when women were often considered inferior and not given more than a domestic education.  We have put together this blog post to show you the evolution of women’s rights over time and also how our expert legal team can assist all women in their business ventures, introducing, A Vindication Of The Rights Of Women – Lawyer Geelong l Canny Group.

The earlier protests and conventions gave way to organised feminist movements which gained pace and political leverage over the 19th and 20th centuries spanning into fields of philosophy focused on the perspective of gender and justice for women, challenging traditional ideas of knowledge and rationality as objective, universal or value neutral, arguing instead for the importance of relative social situations and values in generating knowledge and the conscious construction of normatively within social orders to share an individual’s reality.

Today, International Women’s Day continues the celebration of the manifestation of gender awareness and the upheaval and displacing of traditions that, in the context of national laws has supported the institutionalisation of such values in current legislation, including:

  • Equal Opportunity Act 2010 (VIC)
  • Racial and Religious Tolerance Act 2001
  • Charter of Human Rights and Responsibilities
  • Age Discrimination Act 2004 (Cwth)
  • Disability Discrimination Act 1992 (Cwth)
  • Racial Discrimination Act 1975 (Cwth)
  • Sex Discrimination Act 1984 (Cwth)
  • Australian Human Rights Commission Act 1986 (Cwth)

We could also add the Fair Work Act 2009 (Cwth) and the National Disability Insurance Scheme Act 2013 (Cwth) as examples of how state authorise have assumed and enveloped all manner of powers charged to regulate and implement these rights in law.

EQUALITY BEFORE THE LAW // the seeds of change

A central area of enquiry among political thinkers has been the traditional role of laws in enshrining classical liberal concepts of liberty, equality and fraternity based on foundations arising out of the Enlightening with changes in assumptions underpinning the structures of society with a growing awareness of individual freedoms and political authority.  The Enlightenment opened modern Western political and intellectual culture from which many subsequent fields of thought, including ideological antitheses of the liberal ideas that would consume much societal change and revolution.  Mary Wollstonecraft was one of England’s earliest feminist philosophers.  She argued for a society based on reason and that women as well as men should be treated as rational beings.  It was this era that brought into focus scientific empiricism and the ideal of advancement and progress and science that is so prevalent in today’s modernity with people largely emancipated from traditional roles by technology.

In England, Jeremy Bentham explored the rethinking of concepts about law in practice and changing laws to reflect what they ought to be, considering the rapid changes that called for equality between the sexes, arguing in favour of women’s suffrage, a women’s right to obtain a divorce, and a women’s right to hold political office.  On the other hand, Marxists postulated that law was the product of economic sources, controlled and tainted by the capitalists resulting in the subjugation of labour forces, but with predictions that historical struggles would usher in social revolutions.

THE ACHIEVEMENTS OF WOMAN // in an equal society

The rapid changes in society and the driving forces towards individual empowerment required the laws to keep up!  By the early 20th century, the seeds of change get into an active and consciously inclusive society, especially with respect to women’s rights.

In 1952, the United National Convention on the Political Rights of Women, was adopted providing that “women shall be entitled to vote in all elections on equal terms with men, without any discrimination“.  In 1902 (1962 for indigenous people) the Australian Federal Parliament legislated voting and standing rights for adult women.  These macro political endorsements of women’s rights were among the world in the developed Western World and throughout the 20th century most countries had adopted women suffrage in line with United Nations charters of human rights, irrespective of religions and culture.

Within these legislative frameworks, slowly but surely participation of women in public office and or political, intellectual, professional life was bound to directly implement reforms motivated by a strong sense of justice and championing of a fairer and better society.  Maybe the highpoint of the war social revision and individual freedom was the 1960s and 1970s recalled now as a distant beacon in global and economically integrated order, that we have seen in operation, particularly with responses to the outbreak of Covid-19.  Following the Covid-19 global crisis we are often reminded by our leaders, such as Mr Scott Morrison declaring that “we’ve got strong, we’re got more capable, and we’ve got better and better” and “we’ve learned, and we’ve learnt”.

In Victoria, women were permitted to practice law in 1903 and today in 2021 approximately 70% of law graduates are women.  Women of course, have embraced opportunities and today we see men and women serving as politicians, judges, lawyers and other professionals, business leaders and entrepreneurs, in defence forces as well as creating new sporting codes such as AFL Women’s Leagues which is normalised in the 21st century.  However, as s a modern realisation perhaps it would have been a cultural shock for a Mary Wollstonecraft had she had a crystal ball in 1792 since abstractions of gender equality have developed into gender equivalence with a striving competition to achieve.  A direct quote from an internet article headed “17 Australian Female Entrepreneurs Crushing It In 2021” by Anditya Gautam says “Australian entrepreneurship was once almost exclusively reserved for men.  Not anymore!  Now, female entrepreneurs are not only competing but also beating men at their own game.“. What have we learnt?  The resetting to a post Covid-19 environment and in a digitalised online market has forces us to abruptly rethink the way we do business.

CANNY LEGAL // helping women in business post Covid-19

Canny Legal prides itself on its socially progressive and inclusive workplace and celebrates the history of the growth of opportunities available to women.  We embrace change and innovation reinventing how we do business.

How can Canny Legal help its female clients in their pursuits of their business aspirations?

Laws are always changing, calling for ongoing review and consideration in how such changes affect our clients.  We cater for all aspects of business start-ups and steering established businesses to a projected growth path, clients can take advantage of our multi-advisory services including legal advice, financial planning, NDIS plan management and accounting at any stage in their life of an enterprise or the realisation of an asset.

We have seen, for example how some women can work from home and establish new businesses using social media and online platforms to brand in beautifully presented sweets and sides.  We have also noticed a burgeoning growth of businesses responding to an opportunity arising out of the National Disability Insurance Scheme (NDIS) which provides funding for participants with a disability with businesses catering for a range of taxpayer funded recreation health and disability services.

The fundamentals of economic and business consideration for achieving financial goals and strategies remains a process of review, discussion, and advice.

By engaging Canny Legal we can assist our clients in implementing their innovations and implementing their business ideas and plans by preparing trusts, leases, drafting equity agreements and employment contracts and protecting intellectual property and drawing up website user terms and conditions to suit their business model as well as response to the changing needs of the business or the requirements of their owners and staying up-to-date with legal developments.

On the other side of the coin, we can assist businesses in enforcing and protecting their legal rights, particularly when traditionally women may have been less inclined to do so, from debt recovered to seeking damages for breach of contract.  We can, in short make the law work for you with our skilled team of solicitors.  Get in touch today to find our how we can help you!


Richard Pinkstone l Canny Legal



Protecting Your Estate // One Of Your Biggest Goals

Canny Legal l Expert Legal Advice for Protecting Your Estate

Each new year brings with it new challenges, goals and aspirations. One challenge/goal that can easily be ticked off the list is to get your affairs in order by arranging your estate documents and having Canny Legal expert legal advice for protecting your estate, you are in the right hands!

Estate documents include your will, powers of attorney and superannuation/life insurance nominations and it can also include financial/taxation advice and planning.

These documents and advice should be reviewed every 5 years but especially if your circumstances have changed such as you have separated from your partner, divorced, married, someone listed in the will has passed away, you start a company or change your trust beneficiaries or trustee and so on.


A will is a statement of wishes by you to the people you care the most about. It tells those you love how you wish for estate to be managed and distributed after your passing.

There are a few important matters to consider when preparing a will.


This is the person or persons responsible for administering your estate in accordance with your wishes in your will. This person is responsible for ensuring that your assets are distributed to your beneficiaries and, therefore, should be someone you trust.

The role of an executor is a large responsibility, and it is recommended that you discuss the role with the person you wish to appoint to make sure they feel comfortable with the role.

It is also recommended that you consider appointing an alternative executor should the person you wish to appoint first is unable to act for your estate at the time of your passing. This will allow for longevity of your will.


This is the person or persons who you wish to receive a portion or all of your estate assets. When considering the assets or funds they may receive, you will need to consider their age and their capacity to manage those funds. If they are under 18 years of age, the executor of your estate will be trusted to manage those funds until the beneficiary reaches a certain age. You may also consider empowering the executor to use those funds and apply them for the maintenance and benefit of that minor beneficiary (for example to pay for schooling fees or buy them a car).

You should also consider alternative beneficiaries should your chosen recipients not be able to receive your benefits.


You will need to know how your assets are currently held. For example, if you own real estate jointly with another person then, through the principles of survivorship, that joint owner will become the sole owner of the property and your 50% share of the property will not form part of the assets of your will. In the future, and upon the passing of the joint owner, the full value of the property will form part of the joint owners estate and will be distributed in accordance with their own will.

Please note that if the property is held as tenants in common, then your share of the property shall form part of your will and be distributed in accordance with your will. Although, you will also need to consider how the property is currently being used between you and the other co-owner (for example, are they currently residing in the property, do you wish for them to continue to reside in the property after your passing).

When considering what assets will be transferred to which beneficiary, you may wish to consider leaving a specific item (such as a family heirloom or jewelry) or a monetary amount to certain persons.


For any minor children under 18 years of age, you will need to consider who will care for them after your passing. This may be your spouse, partner, eldest child, aunt, uncle and so on.

When considering who to appoint, you will also need to consider that the guardian will be solely responsible for managing the affairs of your children and will use the assets of your estate to pay for the maintenance, education and support of your children. You will also need to consider any shared custody arrangements and any alternative guardians should your appointed guardian not be able to care for the minor children.

You may also wish to consider your wishes in relation to where your children will live and go to school.

We note that a person appointed as guardian in the will does not automatically authorise them to be guardian. Your appointed guardian will still be required to obtain an Order from the Victorian Civil and Administrative Tribunal (VCAT) appointing them as legal guardian.


Without a valid will in place, your estate falls into the laws of intestacy. Your next of kin is then responsible for the administration of your estate and any specific wishes or protections a will could provide are not possible under the laws of intestacy.

A valid will shall also assist your loved ones in administering your estate in accordance with your wishes.


A Power of Attorney is a person appointed by you to manage your financial, personal and medical affairs whilst you are still alive, but you no longer have capacity to make your own decisions.

Your incapacity can only be determined by a doctor.

This person is responsible for managing your entire estate and it is highly recommended that the person or persons you appoint are people that you trust completely.

Without your powers of attorney documents in place, for your financial and personal affairs, your loved ones would need to apply for a Guardianship Order from VCAT in order to manage your affairs.

For your medical matters, the doctors would speak with your loved ones and ask for their opinions, however, the doctors will ultimately make the final decision which may be against your wishes.


Your superannuation is an asset largely forgotten about. What most do not realise is that your super does not automatically form part of the pool of assets to be distributed in accordance with your will.

Your superfund can only distribute your super to the following authorised recipients:

  1. Spouse,
  2. Children
  3. Anyone financial dependent upon you; and
  4. Your legal personal representative (ie your estate).

If you wish for someone who is not a spouse or dependent to benefit from your estate (such as a friend, niece or nephew) then the super would need to be given to your legal representative so that it becomes part of your pool of assets to be distributed through your will.

In order for your super to distributed to your intended recipients, you will need to complete and lodge with your superfund a binding death benefit nomination. Without such nomination, your superfund will decide where the funds are distributed by reviewing your estate in light of the above category of authorise recipients.  This may be against your wishes.

Please note that a binding death benefit nomination can be lapsing and non-lapsing. Generally, a retail superfund will have a lapsing nomination which means the binding nomination becomes non-binding on the superfund after a period of time (generally 3 years). You would be required to lodge a new nomination every 3 years for it to continue to be binding.

We recommend speaking with your superfund or a financial advisor about what type of nominations your superfunds provide and whether any current nomination is binding.


Another consideration in your estate planning is whether you have any life insurance in place. This may be included with your super or may be outside your super. There are benefits and negatives of each option.

If you have a life insurance policy in place it is recommend you review the amount you have been insured for and whether it is sufficient. You will also need to consider who you wish to benefit from your life insurance policy.

Similar to your super, your life insurance benefit does not automatically form part of the pool of assets to be distributed in accordance with your will. You will need to lodge a binding death benefit nomination with your insurer to ensure the benefit of the policy will pass to your intended beneficiary.


Canny Legal l Expert legal advice for protecting your estate – If you are in need of a review of your estate or wish to start the process of putting your estate documents in place, our skilled team of lawyers will be able to assist you.

HomeBuilder Grant

HomeBuilder Grant – Property + Conveyancing l Canny Group

In June 2020, as part of its economic response to Coronavirus, the Australian Government announced its HomeBuilder Grant.  The purpose of which is to assist in the continuation of the construction industry through employment of trades and to maintain or increase the property market.  Canny Legal’s team is well versed in the HomeBuilder Grant – Property + Conveyancing l Canny Group.

So, what is it all about?

The Grant provides eligible owner-occupiers with a grant of $25,000 to build a new home or to substantially renovate an existing home.  Owner-occupier refers to someone living in or intending to immediately live in a property as their main residence.

Here’s what you need to know if you are eligible…


The grant is available to owners who own land or are buying land and intend to build a home on the property as their main residence. Criteria each owner must meet:

  1. Be a natural person (ie not a company or trust)
  2. Be over 18 years old
  3. Are an Australian citizen
  4. The property is your main residence
  5. You are not an owner-builder
  6. You meet one of the following two income caps:
    1. INDIVIDUAL APPLICATION // no more than $125,000 per annum based on your 2018/19 taxable income OR
    2. COUPLE APPLICATION // no more than a combined value of $200,000 per annum based on your 2018/19 taxable income
  7. The building contract was signed between the 4th June 2020 and 31st December 2020
  8. Construction must begin within three months of the building contract signing date
  9. The builder cannot be a relative (must be an arm’s length transaction between unrelated parties)
  10. The property value (house and land) must not exceed $750,000

BONUS – this Grant is an additional monetary payment to the First Home Builders Grant for first home owners!

SUBSTANTIAL RENOVATIONS // Homeowners are eligible for the Grant if they enter into a building contract for works that will significantly improve their property but not for works that would be viewed as repairs to the home.  Criteria each owner must meet:

  1. Be a natural person (ie. not a company or trust)
  2. Be over 18 years old
  3. Are an Australian citizen
  4. The property is your main residence
  5. You are not an owner-builder
  6. You meet one of the following two income caps:
    1. INDIVIDUAL APPLICATION // no more than $125,000 per annum based on your 2018/19 taxable income OR
    2. COUPLE APPLICATION // no more than a combined value of $200,000 per annum based on your 2018/19 taxable income
  7. The building contract was signed between the 4th June 2020 and 31st December 2020
  8. Construction must begin within three months of the building contract signing date
  9. The builder cannot be a relative (must be an arm’s length transaction between unrelated parties)
  10. The contract price must be between $150,000 and $750,000
  11. The property value before the renovations must not exceed $1.5 million
  12. The works must be in connection with the dwelling (ie swimming pools, stand along garages and granny flats do not apply)

PROCESS + TIMING OF PAYMENT // Applications for the Grant are not yet available.  For new builds, the grant will be paid in line with the timing of payments for First Home Owner Grants, or at the discretion of their state and territory.

For substantial renovations, the grant will be paid once at least $150,000 of the contract price has been paid for the renovation.

ADDITIONAL CONSIDERATIONS // While all States and Territories have signed the National Partnership Agreement for the Grant to proceed, each State and Territory through their relative Revenue Office’s (or equivalent) will be setting their own guidelines and framework for applications and these may slightly alter the criteria above.

Please do not hesitate to contact our friendly legal team should you wish to discuss the Home Builder Grant further.


Watch this space – SRO –

Australian Government –


Katherine Taylor – Solicitor

BCriminology (History), LLB


Estate Planning.. Not Just For The Wealthy!

Estate planning, or ‘life planning’ as we call it, isn’t just a tool for wealthy families.  Estate planning is useful for all of us, many of us accumulate a substantial estate reflecting a lifetime commitment to work.  It is our interest and our family’s that we don’t waste unnecessary money on tax or expose your hard-earned assets to potential risks and otherwise accommodate families to future conflicts and disputes.

Life planning covers your future estate, assets, and tax planning.  Generally, the easiest place to start is with your Will.  Your will is central to your estate plan, and there are mechanisms which can be included in your will to ensure that your family are all adequately provided for.

You can choose a simple Will or a testamentary discretionary trust, which is a special type of discretionary trust that is created by a person’s Will.  The Trust comes into existence after the will-maker dies.  Instead of passing the assets directly to the beneficiary, the executor transfers the assets into a discretionary trust to be held by a separate trustee for the benefit of the beneficiary (and a general class of beneficiaries).

There are a number of benefits that come with the creation of a testamentary discretionary trust, some of which include:


An advantage of a testamentary discretionary trust is that the trustee of the trust can stream the income earned from the trust assets through to a class of beneficiaries in the most tax-effective way.  This usually includes immediate family members such as children.


When a testamentary discretionary trust holds assets, your beneficiaries are protected from being at risk of personal liability such as from creditor claims, the application of bankruptcy or family law claims.  This is because the trustee has legal ownership and uses their discretion to distribute any income or capital to the beneficiaries and until they receive that share, they do not own the asset.


Finally, if your beneficiary is receiving Centrelink entitlements now or in the future, trust structures can be used to preserve those entitlements, reflecting separate ownership.

All estate planning solutions need to be tailored to your personal circumstances.  For personalised estate planning advice and to organise an initial meeting with one of our legal team, please contact us.


Kayla Kennedy – Solicitor


Contracts Can Be Cruel!

Contracts Can Be Cruel – Expert Legal Advice l Canny Group

You found the perfect property, the vendor and their agent have been amazing, friendly, flexible and have been open to all of your requests through the negotiation stage.  Sounds to good to be true?  It might just be! We are here to help with our team of specialists, introducing, Contracts Can Be Cruel – Expert Legal Advice l Canny Group.

If you’re thinking about purchasing a property, do not take the word of the vendor or their agent.  The details of any negotiations are in the pages of the contract.  As stated by Ronald Regal – “trust, but verify”.

Conveyancing has gone through significant changes over the past 5-10 years.  Processes and legislation have modified and, subsequently, so to has the contract of sale.  Gone are the days of fairness and equality in a contract, with contracts now re-written to solely protect the vendor leaving the contract reflecting a ‘no vendor liability’ or ‘take it or leave it’ status.  Further, as the property market expands and there is more interest surrounding a property, you may feel pressured to sign on the dotted line without first obtaining advice.

A contract reflects the negotiations between you and the vendor.  A standard clause now placed in contracts is that the contract is the entire agreement and you will not be able to rely on any promises, assurances or agreements made by the vendor or their agent unless that are inserted into the contract.  It is, therefore, very important that all negotiations with the vendor are disclosed and inserted into the contract.

It is also important for the contract to be reviewed so you are aware of your obligations.  The worst contracts will see you not being able to make any claims against the vendor for damage caused by the vendor or for their failures to comply with building regulations or contamination of the land.  Further, the penalties applied for delayed settlements, delayed paperwork and requests for finance approval extensions can make for a very expensive exercise.

A further catch is when an agent asks for you to sign the contract as a way to secure your offer to the vendor, but, you have not yet had the contract reviewed and amendments may be required.  The agent may then provide this to the vendor and, if accepted, the contract becomes binding.

Amendments to the contract are part of the negotiations and should be completed prior to your signing any contract.  You may be able to reply on the 3-day cooling off period, but, it is best to speak with our office in this regard.

If you need any advice in relation to your purchase or potential purchase, please get in touch with us and we would be happy to assist you!


Katherine Taylor – Solicitor

BCriminology (History), LLB

[Sub]Divide + Conquer

(Sub)Divide + Conquer – Expert Legal Advice l Canny Group

The subdivision and development of your land is an excellent way to make a profit on the assets you currently have. As always, there a few matters that need to be considered prior to diving into this potentially lengthy process. Introducing, (Sub)Divide + Conquer – Expert Legal Advice l Canny Group

SO… Is your land suitable?

Your ability to subdivide and develop your land depends largely on whether the property is suitable in terms of size, location and zoning.

When your Council is considering a subdivision application they will examine the size of the land, if the property is subject to zoning or planning overlays that may restrict or prohibit subdivisions, and will compare these with their development strategy for the area. They may impose conditions if the subdivision would affect natural resources, environmental areas and biodiversity, land use, heritage and infrastructure. They may refuse the application if it is not within their development strategy. As a first step, speaking with Council will give you an idea of their requirements and if the property is suitable.

WHO PREPARES THE APPLICATION + how is the plan of subdivision created?

As well as speaking with Council, we recommended you also speak with a land surveyor. The role of a surveyor is to dive deeper into the property’s suitability. They will examine the property, determine is suitability, assess the most appropriate way to subdivide the land, create a new plan of subdivision, work with Council and external sub-contractors to ensure all conditions are satisfied to obtain the statement of compliance from Council and to submit the subdivision application to our office for registration.

WHAT’S NEXT… Once the Council have given the tick of approval?

Once all the conditions of the subdivision are satisfied and Council have provided their statement of compliance, we [ie. your legal team] will attend to the registration of the plan of subdivision. As part of this application, we lodge a summary form to the Titles office with copies of the plan of subdivision documents. We will also obtain the lender’s consent to the subdivision if there is an existing mortgage over the property.

WHAT HAPPENS… once the plan of subdivision has registered?

Once the subdivision has registered, new certificates of titles will be issued for the new pieces of land. If there is any common property in the new plan of subdivision [such as a common driveway] an owner’s corporation [as known as a body corporate] will be established and they will own that particular piece of land. You will also need to consider the management and maintenance of that common area.

HOW LONG… will the subdivision process take?

The time frame for the development and subdivision of the land will vary depending on the work to be completed on the property, including whether or not buildings will be constructed.  However, you can generally expect that a subdivision process can take between 12-18 months to finalise from start to finish.

WHAT ELSE… might you need to consider?

  • HOME DESIGN if you intend to construct houses on the subdivided land as part of the development we recommend speaking with a builder and/or architect to discuss potential home designs. The proposed plan of subdivision may limit your design options.
  • FINANCE: the subdivision of land can be a costly exercise. It is a good idea to enquire into the costs involved in the development and discuss these with your accountant, broker/lender and a financial advisor.

Below is a summary of the costs you can expect to pay for a 2-lot subdivision:

Council Fees $3,000
Council Levies $15,000
Surveyor Fees $10,000
External Subcontractors $40,000
Builders/Architects $600,000

(based on construction of two homes valued at $300,000 each)

Legal Fees $1,200 – $2,000
TOTAL ESTIMATE $669,200.00

*The above is an estimate only. The final cost is dependent upon the property, the development and the costs set by Council, the surveyor and the external contractors.

  • STRUCTURE OF OWNERSHIP: If you are entering into a subdivision project with others, you should also consider how you should own the property [ie. personally or within a trust/company structure], and how contributions, expenses and distributions are managed. Our legal and accounting teams can advise on this based on your individual plans and circumstances.
  • SALE OF SUBDIVIDED PROPERTY: If you intend to sell the developed land, you will need to further consider your Capital Gains Tax [CGT] and Goods and Services Tax [GST] obligations. We recommend speaking with your accountant in this regard.

If you are interested in learning more, please do not hesitate to contact one of our friendly property lawyers.


Katherine Taylor – Solicitor

BCriminology (History), LLB

Young Money – Estate Planning For Millennials

Wills + Estates – Estate Planning Australia l Canny Group

We understand life is busy, whether you are studying full-time, travelling the world or thriving in your career.  Like most of us, the last thing on many young peoples’ minds are what will happen to their assets if they were to pass away suddenly.  We’ve put together everything you need to know so you can be prepared, indtroducing; Wills + Estates – Estate Planning Australia l Canny Group.

And what assets do young people have to be worried about?  Aside from personal items, many will be thinking that all they have is some money in the bank, personal items, and maybe, a first home with minimal equity. However, many don’t consider their superannuation fund as a personal asset worth worrying about, but we all should.

Superannuation is one of those assets that many people just set and forget.  Your superannuation can be your most valuable asset, particularly as a young person, when, although the balance of actual super you have accrued is minimal, the automatic life insurance attaching to many retail and industry superannuation funds may be worth hundreds of thousands of dollars.  This will form part of your ‘superannuation death benefit’ should you pass away.

Most superannuation funds allow their members to nominate who will receive their death benefit [accumulated super and life insurance] upon their death.  What is often not communicated by the super fund, is that superannuation law only allows a limited category of persons to benefit from your superannuation fund.  Those people are a spouse or de facto partner, children or your estate [distributed by your will].

So, what happens if you don’t have a partner or children?  Well by putting in place a simple Will, you can nominate your estate by completing a death benefit nomination, and by your will you can then distribute this significant asset to third parties [for example, to parents, siblings, friends or charities].

We also know that whilst you may know and understand that you need a will, you just don’t have the time [or inclination] for multiple appointments with a lawyer during business hours to get it done.  We like doing things differently here and have recently developed an online Will service to provide a reliable and accurate will for those with straightforward circumstances who want to prepare a will on their terms.  Our Off The Rack will option is fully autonomous and can be completed anytime and anywhere [ie. on your couch in trackies at 9pm with a glass of wine in-hand] and your document is delivered to your inbox within one business day.  We also have our Tailored will option which combines online preparation with a short appointment with our lawyers to finalise and sign it, and of course, should you want the piece of mind of a fully custom will with detailed advice, our Bespoke will option is also available.

Visit to find out more or to get your will started, and if you’re not sure which option is right for you, complete the short questionnaire to point you in the right direction.

Powers of Attorney are another vital element of estate planning that are generally overlooked by young people. Download our free Seven Essentials of Estate Planning Guide, or look out for a future bulletin to learn more.


Kayla Kennedy – Solicitor


Superannuation Nominations – Make It Legit!

Superannuation Nominations – Specialist Advice l Canny Group

Don’t be trapped by the pitfalls of superannuation nominations – make it legit!  Have your circumstances changed recently?  Have you married, separated, divorced, had kids, or are your kids now over 18 years old?  It may be time to consider and/or review your superannuation nomination.  We’ve put together everything you need to know to ensure that one of your biggest assets is protected, introducing; Superannuation Nominations – Specialist Advice l Canny Group.

A superannuation nomination is a notice to your superfund trustee outlining who you want to receive your superannuation benefits after your death.  However, your superfund trustee is only bound by a nomination that is valid [in accordance with superannuation laws].

Many superannuation funds will not guide you through what constitutes a valid superannuation nomination, which makes it all the more difficult.

So, what constitutes a valid superannuation nomination? Your superfund trustee will look at the following hierarchy of people when considering how to distribute your super:

  1. Your spouse or ex-spouse;
  2. Your children [or other financial dependents]; and
  3. Your Estate.

Let’s break these categories down a bit further…


It may seem common sense that a superfund trustee would pay your super benefits to your partner automatically.  And this is true, particularly if you have made a nomination directing the payment to your spouse.  However, if, since making the nomination, you have separated or divorced from your spouse, the nomination is not revoked and, in fact, remains valid. Thus, your benefits may be paid to an ex!


The intention of superannuation is to fund the retirement of you and your dependents.  Accordingly, a spouse and children who are considered to be financially dependent upon you will receive the most beneficial treatment under superannuation law.  Your children who are under 25 or have a disability will be considered dependents.

You must be careful with nominations to children as there can be pitfalls, including:

  1. You cannot nominate nieces or nephews [invalid];
  2. If the children are under 25 and you have a spouse or an ex-spouse who is alive, that person will be considered the guardians and your super will be paid to them [to hold upon trust for your children until they attain the age of 18];
  3. Children who are over 25 are determined as not being financially dependent upon you, and if the super benefit is paid to them then they will be heavily taxed upon receiving the death benefit.
  4. The taxation consequences can be different for children depending on their ages at the time of your death, which will create an uneven division in real [net] terms;
  5. As long as your children are over the age of 18 years, the superannuation fund will pay an entitlement directly to nominated children, meaning you cannot protect that benefit for your children until they attain an older age.

If you intend for your super benefits to benefit your children, and any of the above issues are in concern in your current circumstances, one solution may be to nominate your Estate as the beneficiary [provided you have an up-to-date Will].  Your Will then controls the distribution of the super death benefits to your chosen beneficiaries and much can be done to reduce or avoid the tax consequences described above!


As mentioned, nominating your Estate is a great way to cover most pitfalls of superfund nominations.  Tax can be avoided or reduced where you have children under and over the age of 25, you can implement asset protection strategies for your personal and superannuation assets for your children, and you can distribute your super death benefits to third parties [who aren’t your spouse or child] through your Will.

The potential consequences of this option are that this can create a further delay between your date of death and the distribution of the superannuation death benefits, and it also has the effect of increasing the value of your estate.  If your Will is challenged after your passing, the superannuation benefits will form part of the asset pool which can be claimed against.  Some food for thought regarding the significant asset that is your superannuation.

So, maybe it’s time to review your superannuation nomination – and for the greatest benefit, we suggest reviewing it concurrently with your Will and Powers of Attorney.

Contact our Legal Team for an appointment to review your Estate Planning to find out how we can help.


Katherine Taylor – Solicitor

BCriminology [History], LLB

Spring Clean Your Life Planning

Spring has sprung, the days are getting longer and the sun is getting warmer – if you haven’t already, you are likely getting out in the garden, cleaning the house, and planning your summer projects around your home and garden.

In all the excitement of improving your physical environment, spare a thought for your life planning; that is, your future estate, asset and tax planning – it is a great time of year to give these a freshen up too!

Your Will is an easy place to start.  We recommend that a review of your existing Wills should be undertaken every 5 years, or earlier, if your current circumstances change.  If you don’t have a Will, NOW is the perfect time to get that process started.

Aside from regular reviews, there are certain milestones which are ideal point to consider and update your Will.  If any of the following have occurred in the last 12 months, or are likely to occur in the next 12 months, a review is necessary:


If any of the above scenarios have recently changed in your life, it would be a good idea to grab copies of your signed Will, have a sit down and read over what you have in place.  If you see anything which requires change, or you are unsure about the impact of a life event, come see our legal team and we will assist you with the review.

Another issue worth noting is how marriage, separation and divorce can affect your Will if you fail to update it.  Each has a different consequence, and failing to consider and update your Will and Powers of Attorney at the time can result in the wrong people being in control of, and entitled to, your hard-earned assets.

The key to good long-term life planning is to be prepared, and obtain advice before committing to a significant life, asset or business change [where possible].  This isn’t limited to Wills, as changes can also impact Powers of Attorney, ownership of assets [ie. if owned jointly with others], business structures and agreements and superannuation entitlements.

Contact our Legal Team today to get your Life Planning spring clean underway.


Kayla Kennedy – Solicitor


Estate Planning

Estate Planning is Life Planning – Expert Legal Advice l Canny Group

I’ve often thought that ‘life planning’ would be a much more appropriate label than ‘estate planning’; estate planning is [and should be] so much more than simply planning for your death.  We have put together what needs to be considered when it comes to thinking and planning for your estate, introducing, Estate Planning is Life Planning – Expert Legal Advice l Canny Group.

Of course, planning for how your assets should be dealt with upon your death by preparing a Will is an important component of the plan, but it only one component of what should be much broader life planning – and that planning should begin as early as possible.

Estate planning extends well beyond Wills, to incorporate Powers of Attorney, Superannuation, business ownership, trust structures, tax planning and broader family arrangements, all of which may have no effect until you are unwell or pass away, but should all be part of your planning whilst you are fit and well and enjoying life.

Your estate planning should be front of mind during many of life’s big moments, including the following:

  • PURCHASING A PROPERTY // planning should include how the property is owned, whether that is in your sole name, joint names with another person, or in the name of a company or trust. Getting this right will determine who can receive an interest in the property should you pass away, and can also avoid unnecessary stamp duty, tax and legal expenses in transferring the property down the track;
  • GETTING MARRIED OR SEPARATING FROM YOUR SPOUSE PARTNER // the joy of getting married, or the difficulty of a relationship breakdown, both have an impact on your estate planning. Prior to the event, you should be reviewing any existing wills, powers of attorney, superannuation arrangements, business ownership structures and the ownership of your own assets;
  • HAVING CHILDREN, OR YOUR CHILDREN BECOMING YOUNG ADULTS // your children are the centre of your world, and should also be the centre of your estate plan, whether that is to provide for the care and provision of your minor children, or to benefit and protect your adult children for the challenges in their own lives;
  • STARTING A BUSINESS, OR PLANNING YOUR TRANSITION OUT OF A BUSINESS // both extremely exciting times, and both requiring significant planning to ensure smooth operation of the business and treatment of key people within it.

For bonus points, great estate/life planning will combine elements of legal advice and documents, financial advice and accounting advice, which is addressed in a cohesive, open and organised manner.


For further information regarding estate planning, please contact us to receive a FREE copy of our ‘7 Steps to Estate Planning Guide’, and look out for future dates for our ‘Estate of Mind’ seminar series at


Stefan Manche – Senior Associate Solicitor

LLB, BComm