Challenges in Creating the Will – 3 program on-demand webinar series

Program 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

Program 2: Be Careful What You Wish for: Letters of Wishes in the Firing Line

A letter or memorandum of wishes accompanying a will or inter vivos family trust can be a helpful tool for an executor or trustee, but also have the potential to cause discontent and lead to challenges. This session provides a tool kit for practitioners in drafting letters/memorandums of wishes and a guide to avoiding the problems that can accompany these personal letters, including:

• When should a will - maker complete a statement of wishes regarding his/her will or inter vivos family trust? Advantages and disadvantages discussed
• Timelines for creation and review of a statement of wishes
• What matters should be included and in what detail?
• What matters should not be included?
• Drafting tips and traps including using statements to explain exclusions and intentions in gifting
• What form should the statement take? Does it need to be signed or sworn?
• Are statements of wishes confidential and who can they be disclosed to?
• To what extent are statements bindings on the executor and how should they be treated?
• Does a statement of wishes form part of probate?
• Key lessons from cases

Program 3: 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