Disputing the Will: Estate Litigation Gets Strategic – recordewd online conference

Session 1: What, When and How: Knowledge and Approval in Estate Litigation

Recent cases have highlighted the challenges of overturning the presumption of knowledge and approval, even where capacity may not be an issue. This session will examine the important lessons from these cases for succession lawyers, including:

• Why testamentary capacity is only part of the equation
• Key elements of knowledge and approval
• Rebutting the presumption – what evidence is required?
• Consequences of failure to prove knowledge and approval, including will invalidity and severance
• Is it enough that the will-maker has read the will?
• Court assessment of knowledge and approval in the event of:
  • mental acuity and comprehension issues
  • suspicious circumstances
  • unsophisticated will-makers
  • complex financial circumstances and arrangements
• How can advisers best ensure that knowledge and approval by their client is satisfied?
• Tips for client management, record keeping and will drafting
• A discussion of recent cases

Session 2: Are Promises made to be Broken? Options for Disappointed Beneficiaries

In the absence of standing to bring a family provision claim, reliance on proprietary estoppel may be a potential option for those who feel let down by the representations of a will-maker about testamentary intentions. This session will examine the key elements of a successful estoppel claim and recent cases, including:

• Who is able to bring a claim of promissory estoppel?
• What evidence is required to found a claim? How can a promise be proved?
• What degree of reliance on the promise must be shown?
• Does there need to be detriment on the part of the promisee and to what extent?
• What orders will the court make?
• When will compensation be awarded rather than specific performance?
• Cases including Stone v Kramer [2021] NSWSC 1456; Harris v Harris [2021] VSCA 138; Moore v Aubusson [2020] NSWSC 1466

Session 3: Adding Up the Costs in Estate Litigation

Courts have a discretion when ordering costs, and it is a misconception that the estate will always pay the costs of litigation. This session will look at the changing nature of cost allocation and orders in estate litigation, including:

• Do costs always follow the event?
• What are the cost rules in estate litigation and how far can judges deviate from the rules?
• Issues in costs allocation including:
  • the cause of the litigation
  • investigations as a result of capacity or drafting
• The proportionality principle: Oslen v Oslen [2019] NSWSC; Harris v Harris [2018] NSWCA 334
• Cost consequences for executors behaving badly
• Advising clients on the prospects of success and cost implications for bad or unfollowed advice
• When will a court impose personal cost orders against practitioners?
• Recent cases including: The estate of Milan Zlatevski; Geroska v Zlatevski (No 2) [2020] NSWSC 388; Re Veca [2015] VSC74; In the Estate of Amuso (No 2) [2021] SASC 61; Re Howden; Howden v Rackshaw [2020] VSC 315; Trinder v Ciniglio [2020] QSC 176