Navigating the Age of Entitlement in Will Disputes – 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: Is Home Where the Heart Is? The Importance of Domicile and Residency in Will Disputes

In a shrinking world with more movement than ever before, Australians have assets overseas and may even spend the greater part of their lives living or working outside Australia. Further, there are people living in Australia who have not taken out citizenship who call other parts of the world home. The issue of where a person lives and where their assets are located can significantly impact the way their estate is treated and the claims that can be made against it. This session will explore the impact of domicile and residency on estates, including:

• Why is domicile important?
• How are domicile and residency determined? A review of legislation and common law: Re Tang [2017] VSC 59
• Evidence of domicile - what will the courts look at?
• Change in domicile following will execution - does it matter?
• When does domicile matter? Intestacy, family provision applications and other claims
• Do the courts have recourse to assets outside the jurisdiction of domicile? Chen v Lu [2014] NSWSC 1053; Hitchcock v Pratt [2010] NSWSC 1508
• What happens if the beneficiary is a foreigner - which law applies to the distribution?
• The relevance of international conventions and treaties, and international wills - consequences for practitioners.

Session 2: Cut Off and Cut Out: Estrangement in Family Provision Applications

Families behaving badly is not an uncommon state of affairs, but when making decisions on claims by estranged family members, courts have had to look at the bigger picture. This session will analyse recent trends in judgments concerning claims by estranged adult children, and provide guidance to practitioners in advising clients in such circumstances both when preparing wills and bringing or defending claims, including:

• How far does estrangement affect the outcome in a family provision claim? Is estrangement in itself enough to prevent a claim?
• Will a moral duty trump estrangement? Wright v Wright [2016] QDC 74
• The “financial need” test: Rogers v Rogers [2018] NSWSC 1982
• The relevance of conduct:

• The effect of long periods of estrangement: Larkin v Leech-Larkin [2017] NSWSC 1418; Burke v Burke [2015] NSWCA 195; Wright v Wright [2016] QDC 74
• Attempts at reconciliation: Jodell v Woods [2017] NSWSC 143; Neal v Neal [2018] NSWSC
• Violence and abuse: Christie v Christie [2016] WASC 45; Pulitano v Pulitano [2019] NSWSC 1688

• Taking instructions: the importance of information on the family dynamic
• Preparing for challenges from estranged family members – what do you need to tell your client?
• Statements accompanying wills to support the decisions or exclusions: what should they say?

Session 3: Will Caveats: Proceed with Caution

Probate caveats are a useful tool to prevent the grant of probate. However, filing a caveat should not be done lightly and could result in significant costs if filed in the wrong circumstances or without proper grounds. This session will provide a guide to the lodging of a caveat and what practitioners need to be aware of, including:

• When should a caveat be lodged? Distinguishing types of challenges against the will
• Who has standing to lodge a caveat?
• What are sufficient grounds for lodging?
• How long does a caveat remain in force?
• What happens after a caveat is lodged?
• Cost risks of the caveator
• Practice notes from the courts
• Case studies and drafting tips