Future-proofing your Client's Estate Plan: Minimising Risks and Potential Challenges – 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: Promises, Promises: Equitable Remedies and the Estate Plan

An adult child has devoted much of their working life to the family business with the promise of a future inheritance, but is subsequently left out of the estate plan. Does the adage, “it’s my money and I’ll do what I want to”, still apply? This practical session focuses on the equitable remedies which might be available to attack even the most well thought-out estate plan and the potential options to help minimise the risk of such claims. It covers:

• When will equitable relief be sought? Examining the common scenarios
• What are the advantages of equitable relief?
• Reasons why equitable relief may be refused
• Proprietary estoppel and creating an interest in land through oral representations
• The use of constructive trusts as a sword and a shield
• Breach of fiduciary duties by trustees
• Strategies to minimize the risks of such claims
• Lessons from recent cases

Session 2: Estate Planning and Family Law Overlap

Despite best intentions, the estate plan can fall apart when relationships break down and the Family Court becomes involved. This session will look at options for protecting the family assets from claims and how the Family Court deals with estate planning tools such as testamentary trusts and the role of attorneys. Topics include:

• The use of Binding Financial Agreements to pre-empt claims. How effective are these, when should they be used and what should be included? Can a BFA prevent a family provision claim?
• Family and testamentary trusts – court scrutiny and court orders, assessing “effective control” and other aspects
• Managing and structuring loans from parents to child – is Re Permewan no 2 [2022] QSC 114 relevant?
• Separation and loss of capacity – the impact of Fairbairn v Radecki [2022] HCA 18
• The use of a deed of release in property settlements to prevent estate claims down track
• Case law update

Session 3: Exclusion Risk and Recrimination in Estate Planning

The number of claims under family provision legislation are significant, and judgments provide an important lesson to estate planners on the impact and consequences to the estate and family relationships of disinheriting family members or reducing their shares compared to other members. This session will examine these lessons and what practitioners should be advising their clients at the estate planning phase, including:

• Who can bring a claim against an estate for insufficient provision?
• Is the exclusion or preference of family members ever warranted? A discussion of cases and claims involving:

• Estrangement
• Poor relationships
• Unequal distribution

• How far will the courts consider fairness and moral duty over relationship issues?
• What advice should practitioners be giving their clients on the impact of family relationships on estate planning?
• What strategies can be put in place to minimise the risk of successful family provision claims? When will these be considered to be unconscionable?
• Can a statement of wishes assist in the defence of a claim? What information should it include? Will it be recognised or given weight by a court in a claim?
• Cases law update