Drafting Watertight Wills: Maximising Certainty and Minimising Conflict – a recorded lunchtime online conference

Duration: Approximately 2.5 Hours

Hear from the experts at this online conference. You can watch it on your computer or on your portable electronic device from anywhere.

The conference will be based on our highly successful video webinar technology: there'll be a chairperson and presentations.

One registration can be shared by colleagues within the same firm utilising the same login.

THE PROGRAM

Session 1: A Match Made in Heaven? Remote Witnessing, Execution and Electronic Wills

The pandemic dragged will making further into the technological sphere, but with it has come practical issues of concern and the increased opportunity for invalidity or mischief. This session will explore the upside and downside of the rules and provide practical advice on minimising risks to both the practitioner and client, including:

• Unpacking the legislation and the consequences of State inconsistencies
• The formal legal requirements and common problems
• When should the remote option be used?
• Tips for setting up a robust process and procedure
• Should the process be recorded?
• Could a practitioner be negligent for failing to use the remote option in certain circumstances?
• Should remote signing be followed up with resigning in person?
• Where mistakes happen and what to watch out for
• Tales and cases from overseas jurisdictions.

Session 2: How High the Bar? Satisfying the Knowledge and Approval Test

Practitioners can pat themselves on the back having successfully navigated the testator capacity hurdle, only to fall at the next post – satisfying the high bar for knowledge and approval. This session will explore past and recent cases and provide guidance to practitioners on how to best ensure their clients understand and approve the contents of their testamentary instruments, including:

• What does knowledge and approval require? Tobin v Ezekiel (2012) 83 NSWLR 757
• Can a testator have capacity but be unable to know and approve?
• Is there a presumption of knowledge and approval?
• What evidence is required to raise doubt or suspicions?
• Who bears the onus of proving knowledge and approval?
• What evidence will the court consider? Mekhail v Hana [2019] NSWCA 197
• What are the remedies where knowledge and approval cannot be established?
• Practical steps for ensuring knowledge and approval by clients
• Is video recording a client a fail-safe action?
• Recent cases discussed including Estate Rofe [2021] NSWSC 257; Lewis v Lewis [2021] NSWCA 168; Gooley v Gooley [2021] NSWSC 51; Star v Miller [2021] NSWSC 426

Session 3: Crossing the Line: When does Suggestion become Undue Influence?

Tight economic times and rising costs have combined to make baby boomers vulnerable targets of unscrupulous family members, particularly when they are sitting on very expensive real estate. Seeking financial assistance is not a crime, but when does behaviour cross the threshold to become undue influence? This session will examine the case law and provide practical advice on client and family management to minimise the risks in succession planning, including:

• What constitutes undue influence at law?
• The difference between actual and presumed undue influence
• How is undue influence proved?
• What behaviour needs to be shown to invalidate a will?
• What are the obligations of a practitioner who suspects a client has been subject to undue influence in estate planning?
• Who has standing to make a claim of undue influence and what evidence must they show?
• What burden of proof is required?
• Remedies for undue influence including constructive trusts
• A toolkit for taking instructions from the elderly, providing advice and dealing with family members
• Cases including Wylie Anor v Wylie [2021] QSC 210; Estate Rofe [2021] NSWSC 257; Micallef v Linney – Estate of Hope Marie Linney [2020] NSWSC 898