Maximising Trusts in the Estate Plan – recorded online conference

Session 1: Let Go from the Get Go? Control Mechanisms in Testamentary Trusts

The desire to rule the family from the grave through a testamentary trust can be overwhelming but can prove a significant impediment with unintended consequences. This session will explore the stepped options for control of testamentary trust decisions and provide guidance on what practitioners need to consider when advising their clients, including:

• Why a testamentary trust can be attractive to controlling will-makers
• Asset inclusion and management considerations
• When is a capital reserved trust appropriate?
• Trustee selection and powers to achieve desired outcomes
• Determining levels of decision-making from specific to discretionary
• Examples of different levels of trust control and consequential outcomes
• Why effective dispute resolution mechanisms are necessary for tightly controlled trusts
• Drafting guidance and techniques
• Lessons from the courts on testamentary trust failings and risks in “controlling from the grave” cases
• Advising clients on getting the balance right in testamentary trusts

Session 2: Protecting Vulnerable Family Members through Trusts

For a parent, the biggest concern throughout life is the care and welfare of their children. Nothing compounds this situation more than having a child who is vulnerable and has special needs. This session examines estate planning options to safeguard the interests of vulnerable family members, including:

• In what situations should a parent be considering a special arrangement for their child in their estate planning?
• What present and future needs should be considered?
• When is a Special Disability Trust an appropriate option?
• A deep dive into Special Disability Trusts including legislative requirements, eligibility, financial considerations and other requirements
• Has the need and effectiveness of Special Disability Trusts been impacted by the NDIS?
• The role of protective trusts for vulnerable beneficiaries – at what stage should these be established?
• Considerations for establishment of a protective trust, including:
  • Asset shares and other family members
  • Impact on government benefits and tax implications
  • Appropriate limitations and conditions
  • Trustee selection, control and sibling involvement

Session 3: Not Happy Jan: Challenging Discretionary Trust Decisions

As family trust control starts to move down the food chain from elderly and deceased parents to adult children, the quality of discretionary decision-making has come under increasing review and dissatisfaction, as evidenced by recent cases. This session will take an in-depth look at discretionary trustee decision-making and the role of the courts, including:

• What must a trustee consider in exercising their discretion?
• What are the grounds for challenging a decision?
• Who can challenge the decision and what evidence do they need?
• What access is available to information and documents concerning the decision?
• What is the responsibility and accountability of professional advisers to the trustee?
• What will the courts consider and what remedies are available?
• Should discretionary decision-making be restricted by a trust deed? Tips for drafting limitations
• Recent cases including Owies & Owies v JJE Nominees Pty Ltd [2022] VSCA 142; Cardaci v Filippo Primo Cardaci as executor of the estate of Marco Antonio Cardaci [2021] WASC 331; Baba v Sheehan [2021] NSWCA 58;  Wareham v Marsella [2020] VSCA 92; Mandie v Memart Nominees Pty Ltd [2020] VSCA 281; Trani v Trani [2018] VSC 274