Authority and Validity Issues with the Estate - 5 program video webinar series

Program 1: Over and Out - Are Electronic Wills Valid in a Coronavirus Landscape?

The coronavirus pandemic, along with advances in technology and easy accessibility, have resulted in an increase in people recording their wills or post-death wishes in a variety of informal ways. Although the law generally fails to keep up with technology, in some instances the courts can dispense with the legal requirements to find validity in such circumstances. This session will discuss relevant cases and developments in this area, including:

• COVID-19 and the continued rise of electronic or informal wills

• Formal legal requirements and common validity problems

• The availability and use of dispensing powers by Australian courts

• Developments in electronic and digital signatures

• How have the courts dealt with non-traditional will forms? Case studies:

• Text message: Re Nichol; Nichol v Nichol [2017] QSC 220

• Video: Radford v White [2018] QSC 506

• DVD: Re Estate of Wai Fun Chan [2015] NSWSC 1107

• Documents on a computer: Alan Yazbek v Ghosn Yazbek Anor [2012] NSWSC 594; The Estate of Roger Christopher Currie [2015] NSWSC 1098; Re Yu [2013] QSC 322

• Guarding against fraud and forgery and other cyber-security issues

• Case study: would an electronic will executed under US law be recognised in Australia?

Program 2: Executor Limitations - The Consequences of Acting Without a Grant

Attempts by executors to deal with an estate prior to a grant of probate can be fraught with danger. This session will explore what can happen when an executor fails to follow the requirements, and the consequences for uninformed or unsuspecting financial institutions or others, including:

• Where does the authority of the executor come from?
• Nature of a grant of probate – why is it required and what does it do?
• When is a grant of probate not required or necessary? Small estates and other circumstances discussed
• Status of the executor prior to a grant of probate
• Vesting of property in the executor: the legislative position
• The use of waivers and releases pre-probate grant to deal with the estate: Public Trustee v CBA Ors [2018] SASC 25
• Ability of the executor to deal with real property in the estate before a grant of probate: Carolyn Deigan as executrix for the estate of the late James Boyd Lockrey v Barnard James Fussell [2019] NSWCA 159
• Tips for advising executors pre-grant

Program 3: 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

Program 4: The Age of Entitlement: Eligibility for Family Provision Claims

Not everyone who feels hard done by in relation to the distribution of the estate is able to make a claim for a slice of the pie. This session looks at eligibility for making a claim against an estate, and what evidence is required to satisfy the court, including:

• Who can bring a claim? Do the Australian jurisdictions differ on eligibility?

• Partners, children, grandchildren and others – analysing the categories of eligible claimants

• How important are fairness and moral duty? Vigolo v Bostin [2005] HCA 11; Firth v Reeves [2019] VSC 357

• Evidence of relationships – what do the courts need to see? Re Gunn; Thomas v Gunn [2019] VSC 772; Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney [2019]NSWSC 1324

• How is “need” proven? Looking at need, dependency and other factors: Dannawi v Dannaway [2019] NSWSC 1287; Veniou v Equity Trustees Limited [2018] VSC 832; Firth v Reeves [2019] VSC 357

• Costs considerations: shifting the burden, proportionality and sounding a warning: Wengdal v Rawnsley [2019] NSWSC 926; Oslen v Oslen [2019] NSWSC 217; Harris v Harris [2018] NSWCA 334

Program 5: 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