Preparing Wills for Maximum Impact – 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: Anoint and Appoint: Key Clauses in Testamentary Trust Deeds

The most important role in a trust arrangement is that of the appointor. The choice of an appointor is the first significant decision that needs to be made, with other considerations following. This session will examine why practitioners and their clients need to give serious consideration to the selection and powers of an appointor and the consequences of getting things wrong, including:

• Does a trust need to have an appointor?

• What qualities does the appointor need to possess?
• What powers does an appointor need to properly discharge their duties?
• What happens if the appointor dies or becomes incapable of acting? How should the role pass?
• What mechanisms need to be in the trust deed to change the appointor or trustee?
• When should an appointor remove a trustee?
• Can an appointor be personally liable?
• Drafting tips for trust deed appointments and variations
• Recent cases including Cardaci v Filippo Primo Cardaci as executor of the estate of Marco Antonio Cardaci [2021] WASC 331; Re Owies Family Trust [2020] VSC 716; Edwards Anor v Brougham [2022] SASC 8

Session 2: Shades of Grey: Professional Responsibility for Determining Capacity

At a time when people are living longer than ever before, the making of a will tends to happen in later life when declining health may impact decision-making. What are the obligations of legal practitioners faced with will preparation for a client with signs of cognitive impairment? This session will provide guidance to practitioners on precautionary measures to protect both their clients and themselves from challenges, including:

• At what stage does capacity need to be tested?
• Who is responsible for making a decision on capacity? Is medical evidence always conclusive?
• Can a person with any level of dementia make a will?
• The role and obligations of practitioners in assessing capacity and planning for will execution
• Key precautionary measures to avoid challenges on the grounds of capacity
• Who bears the onus of proof in a challenge?
• What evidence of capacity will the courts look at?
• The role of the statutory will regime when testamentary capacity is lacking
• Recent cases including Greer v Greer [2021]QCA 143; Estate Rofe [2021] NSWSC 257; Chant v Curcuruto [2021] NSWSC 751; Gooley v Gooley [2021] NSWSC 56

Session 3: Double Trouble? The Perils and Pitfalls of Mutual Wills

The benefits of mutual wills can be significant, but in practice mutual wills have their problems and limitations in terms of drafting, enforcement and family impact. This session will examine those issues and provide guidance to practitioners in how to navigate and minimise the risks, including:

• In what circumstances should mutual wills be considered?
• A deep dive into the advantages and disadvantages
• How binding are mutual wills?
• Can one party change or revoke their mutual will without the consent of the other party?
• Who can bring an enforcement action against the will-maker and at what stage?
• What are the consequences of a surviving party dealing or reducing the assets referred to in a mutual will?
• Alternative options for protecting assets and ensuring disposal intentions are met
• Can a mutual will defeat a family provision claim? Stanford v Stanford [2021] NSWSC 1469
• Do practitioners have a conflict of interest in drafting mutual wills for both parties?
• Drafting tips for mutual will provisions
• Recent cases, including Forster v Forster [2022] QSC 30