Drafting Watertight Wills – a recorded lunchtime online conference

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: Knowledge and Approval and Testamentary Capacity: Getting it Right from the Starting Block

Objections to a will being admitted to probate are generally based on either the testator lacking testamentary capacity, or failing to know and approve the particular will. Disputes can be complex and the costs substantial. This session examines how succession lawyers can prevent these types of disputes at the will-making stage, including:

• Testator’s knowledge and approval essential to validity – what are the parameters?
• Relationship between testamentary capacity and knowledge and approval
• Evidentiary burdens in testing capacity – an overview
• Assessing whether the will is the product of a free and capable mind
• Assessing capacity remotely and in person – differences in evidentiary burden
• Communicating with client over capacity assessment
• Recording of initial mental capacity assessment
• Determining when to refer for further assessment
• When capacity is at issue – key dos and don’ts of solicitors
• Case update

Session 2: The Dangers of Joint Ownership in the Succession Plan

Joint tenancy is often used by couples as a means of owning shared assets, such as the family home. While joint ownership and the right of survivorship can work well for couples in long-standing relationships, complications can arise when dealing with blended families, or assets jointly owned by parent and child. This session examines the complexities, including:

• Joint tenancy v tenants in common – when are they appropriate?
• Survivorship rights and bank accounts – does joint signatory equate to joint owner?
• When is a joint account regarded as an estate asset?
• Family law consequences of joint ownership
• Joint ownership and Centrelink and tax consequences
• Case study: blended families and joint ownership
• Case update, including Gambacorta v Di Giovanni [2021] NSWSC 61

Session 3: Drafting Effective Testamentary Trusts

There are numerous benefits for both the testator and beneficiaries in the creation of a testamentary trust for the holding and distribution of estate assets and income after death. The establishment and ongoing arrangements for a trust to be set up in the will requires care in drafting to avoid problems down track. This session details the essential provisions of a testamentary trust arrangement, including:

• Circumstances for including a testamentary trust in the will
• Key clauses to include
• Powers, appointment and removal of a trustee
• Defining the class of beneficiaries and managing those who pre-decease the testator
• Specifying assets to be held in the trust and their ongoing management
• The elements of trusts for a special purpose eg disability or special need
• Inclusion of “opt out” provisions
• Administrative and legal requirements for setting up the trust