Holding Trustees, Executors and Attorneys to Account – 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: Testamentary Trusts: Trustees and Discretionary Decision-Making

Being a trustee of a testamentary trust brings with it great responsibility and sometimes onerous obligations. While in most cases the duties are carried out in accordance with the law and testamentary powers, the courts have also had to deal with decision-making that goes beyond the powers and even into the realm of bad faith. This session will explore the duties of trustees and examine cases where the courts have had to intervene to remedy the situation, including:

• Trustee discretionary powers and overriding duties
• What must a trustee consider in exercising their discretion?
• Does a trustee have to give a reason for their decision?
• When can a discretionary decision be challenged and by whom?
• What will the courts look at and what remedy can they order?
• Drafting tips for discretionary powers in trust deeds
• Key steps for trustees when exercising their discretion
• Is there a good argument for not including discretionary decision-making in a trust deed?
• Recent cases including: Cardaci v Filippo Primo Cardaci as executor of the estate of Marco Antonio Cardaci [2021] WASC 331;Baba v Sheehan [2021] NSWCA 58; Re Owies Family Trust [2020] VSC 716; Mandie v Memart Nominees Pty Ltd [2020] VSCA 281; Marsella v Wareham (No 2) [2019] VSC 65

Session 2: Disapproval and Removal: Showing Executors the Door

Courts are more willing to deal with executor bad behaviour than they have been in the past, but it’s no easy feat and can impose a heavy toll on family relationships and the management of the estate. This session will explore the options and processes involved in executor removal, including:

• Why executor appointment needs to be carefully considered upfront
• The risks of appointing family members and other interested parties
• Role and responsibilities of executors and where it can all go wrong
• What constitutes unacceptable behaviour?
• At what stage can an application be made to remove an executor?
• What is the process for removal?
• What will the courts consider in a removal application?
• Who pays the costs of an application for removal?
• Are there alternative options for managing a poorly performing executor?
• The courts and independent third-party appointments – a new solution?
• Recent cases including Re Hartley (deceased) [2020] QSC 251; Connock v Connock (in his capacity as the executor of Connock) [2021] VSC 64; Re Vasiliades; Pappas v Vasiliades [2021] VSC 720

Session 3: Attorney Wheeling and Dealing with Estate Assets

The passage of time between will execution and eventual estate administration can be significant, and circumstances may result in a change or diminution of assets left in the will. An added challenge can be when the assets are used or sold by the will-maker’s attorney between appointment and death. This session will explore some of the issues, cases and developments in this area. Including:

• A refresher on the duties of an attorney
• Why attorney choice is so important – should there be more than one attorney?
• Issues in second spouse/blended family situations
• Taking instructions and ensuring client understanding of the grant
• Does an attorney need to consider the will-maker’s testamentary intentions in decision-making?
• Can the attorney’s actions be challenged by potential beneficiaries if their proposed actions impact estate property?
• Does a practitioner have a conflict of interest where the will property is dealt with by an attorney?
• Drafting tips and traps for limiting powers of attorney dealings
• Relevant legislation and State reforms on power of attorney misuse and elder abuse
• Cases including McFee v Reilly [2018] NSWCA 322; Reilly v Reilly [2018] NSWSC 804; Wylie Anor v Wylie [2021] QSC 201; Smith v Smith [2017] NSWSC 408; Dawson v Dawson [2019] NSWCA 826