Authors: Alice Nunn
Published: 1 September 2022
Pages: 24

Introduction

As each year passes, estate planning and estate administration seems more complex and litigious. The consequence of this is lawyers, now more than ever, require a reasonable level of understanding of almost all areas of law to ensure clients are advised appropriately. Partnerships are just one of these areas of law, and the purpose of this paper is to highlight the relevant legal framework and consequences of partnerships which apply in an estate planning and estate administration context.

Partnerships are often overlooked during estate planning. Sometimes this is because the partnership is undocumented, or the partnership was created after a lawyer’s involvement in a transaction. In these instances, neither the client nor the lawyer may be aware of the existence of a partnership.

Like trusts, there is no government register to confirm the existence of a partnership and no particular documentation required for a partnership to arise at law. A partnership begins when all elements of the definition of partnership are met regardless of whether or not the parties intended for a partnership to arise. To complicate matters further, even if there is an express agreement formalising a partnership, unless the elements of the definition are met, the partnership will not be created.

A partnership may arise at law through an oral arrangement or even simply the actions of parties. The consequence of this is that it does not matter what the parties label the enterprise, or if they were unaware it existed, the courts will decide if a partnership has been created or not.

Where a partnership does arise, but has not been identified before death, it is likely that on death the complications of this legal structure will be revealed. This is largely because partnership interests and partnership property cannot be disposed of in the same way as personal property.

Wills and arrangements made which do not take into account the existence of a partnership can lead to testamentary gifts failing and carefully thought-out succession arrangements being derailed. It is at this point where clients or expectant beneficiaries will inevitably look to blame the lawyer for the situation they now find themselves in. This risk makes the understanding and consideration of partnership arrangements essential for all lawyers.

Content outline

• Partnership law
• Identifying a partnership
• Partnership property
• Dissolution of a partnership on death
• Death, partnerships and Property Relationships Act 1976
• Disposing of a partnership interest or property in a will
• Partnership identified after death
• Executors as partners
• Useful clauses