Testamentary Trusts in the Estate Plan: From Intent to Impact – a recorded lunchtime online conference

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
• Lessons from recent cases

Session 2: Protect and Defend: Drafting Considerations for Disability and Protective Testamentary Trusts

One of the biggest concerns for clients with vulnerable and special needs family members is the certainty that they will be looked after following the death of their parents or carers. This session will examine the key requirements and contents of specific testamentary trusts and highlight the risks in drafting failures, including:

• What are the considerations and trust options for families with a special needs’ dependent?
• Unpacking the legislative requirements for special disability trust arrangements
• A focus on the essential components of disability and special needs trust deeds
• Factoring in flexibility for changes in circumstances
• Drafting with default in mind – what can go wrong? Anticipating problems and drafting solutions in advance
• Lessons and examples from the courts

Session 3: Testamentary Trusts: Holding Trustees to Account in 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?
• Lessons from recent cases