Attorney, Trustee and Executor Issues in the Succession Plan – recorded lunchtime online conference

ration: 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: When Executors Fall Out and Other Joint Executor Conundrums

The appointment of joint executors is not unusual. Nor is the potential for things to go wrong. This session looks at what can happen when joint executors fall out and the type of orders a court can make. It includes:

• Duties of joint executors and how they should be exercised
• Key issues to consider when deciding on joint executors:

• Is an executor a surviving spouse?
• Who are the beneficiaries?
• Executors interests conflicting with beneficiaries’ interests
• Complexity of estate
• Likelihood of will being challenged
• History of co-executors

• Executor’s obligation to explore solutions to any dispute

• Problems with settlements involving executors:

• What do you protect?
• What if beneficiary does not consent
• Risks in settling
• Mediation

• Powers of a court - removal and the appointment of an administrator
• Costs orders that can be made against warring executors

• Rights to commission where there are disputes
• Risk management to deal with executor deadlock

Session 2: You Can’t Get Away with That! Challenging Abuse of Enduring Powers of Attorney and other Unconscionable Conduct

In theory an EPA can provide an important protection for those who have lost decision-making ability. However, in practice, the handing over of such power can result in decisions and actions which ultimately impact on the estate of the appointor following death. In a similar vein, even where there is no EPA, what can be done about pre-death actions taken by close family members under apparent or perceived authority? This session explores what the courts can do in relation to such actions impacting the estate, including:

• Duty and powers of the EPA - at law and the importance of the appointing document
• Exercising powers in accordance with intentions: McFee v Reilly [2018] NSWCA 322; Smith v Smith [2017] NSWSC 408
• What is the effect of the appointor’s death on the attorney? Dawson v Dawson [2019] NSWCA 826
• Recent cases on pre-death “gifts”: Olsen v Mentink [2019] NSWCA 1299; Meiners v Gunn [2020] WASC 18; Mikhail v Hana [2019] NSWCA 97
• Who can challenge the wrongdoings and what are the available remedies?

• Statutory
• Common law
• Criminal

• Law reform and EPAs - developments

• Drafting EPAs to prevent elder abuse risk and other strategies for protection of vulnerable clients

Session 3: Protecting Your Back with Beddoe and Benjamin Orders

Beddoe orders can offer cost protection for trustees when defending or bringing a claim. Likewise, Benjamin orders can be useful in circumstances where it is unclear who should rightfully and legally inherit from an estate. This session looks at the practical issues when considering Beddoe applications and Benjamin orders. It will cover:

Beddoe Orders

• When should you bring a Beddoe application?
  • A third party dispute
  • Trust dispute
• Who brings the application?
• When is a Beddoe order unsuitable? Disputes between the trustee and beneficiaries arising out of the trustee’s conduct
• What orders can the court make?
• What is the position with costs of the application?

Benjamin Orders

• When is it appropriate for an executor to seek a Benjamin Order and what are common orders sought?
• What does the applicant need to disclose in seeking a Benjamin Order?
  • Who is or may be entitled to the part of the estate that is in issue?
  • What are the difficulties which lie in the way of a distribution?
  • What evidence is there?
  • What attempts have been made to plug gaps in the evidence?