Crafting Succession: Mastering Wills, Powers of Attorney and Capacity Challenges – a 4 part on-demand webinar series for NSW Succession Lawyers

Program 1: Knowledge and Approval and Testamentary Capacity: Getting the Foundations Right

In the realm of wills and probate, objections to the admission of a will often revolve around challenges to the testator's testamentary capacity or their failure to fully comprehend and approve the specific contents of the will. This session delves into the proactive measures succession lawyers can employ during the will-making process to minimize the likelihood of such disputes. Key topics covered include:

• The relationship between testamentary capacity and the testator's knowledge and approval - how these factors intertwine and influence each other
• Navigating the evidentiary burdens involved in testing testamentary capacity
• The assessment process to determine whether the will is the genuine product of a free and capable mind, considering the factors that influence this determination and how they can be evaluated
• Best practices for communicating with clients during capacity assessments, ensuring clarity, sensitivity, and compliance with ethical and professional obligations
• Critical factors to consider when determining whether to refer a client for further assessment of their capacity, and providing insights into the process of obtaining expert opinions
• Case update, including Lim v Lim [2023] NSWCA 84

Program 2: Where There’s a Will There’s a Way: Informal Wills and Testamentary Intent

While wills are generally regarded as formal legal documents, there are circumstances in which other documents or records of testamentary intentions may be accepted by the courts as an informal will. In a world where technology has caused a general relaxation of language and diverse means of communications, it is more important than ever to understand the circumstances in which an informal document or recording may be end up being construed as a will and to advise clients accordingly. This session will examine:

• The requirements, and exceptions, of a valid will under the Succession Act 2006
• When should practitioners consider preparing an informal wills?
• Probate and informal wills - what are the challenges?
• Recent case examples of when recordings and less common forms of communication have been used as the basis of an alleged will and the practical issues which arose in such cases
• Spotlight on the problems which have emerged with remote signing
• The circumstances in which the Court may recognise an informal will - what are the courts looking for?

Program 3: Incapacity, POA and Guardianship in NCAT: Mind the Gap

Since the High Court decision in Burns v Corbett, it can be difficult to identify to what extent the NSW Civil and Administrative Tribunal provides options for succession law clients. This session will explore:

• The types of matters that can be determined by NCAT (and what can not):
  • how to identify whether your matter involves an exercise of federal jurisdiction
  • what to do if there is an identified federal jurisdiction issue
• Procedural challenges and strategies involving NCAT:
  • what orders should you seek in NCAT?
  • tips for applying and preparing for hearings
  • what changes lie on the horizon?
• When may it be preferable for a matter to be commenced in NCAT?
• Understanding the alternative options available to succession law clients

Program 4: Protecting the Vulnerable: Safeguarding Against Elder Abuse and Fraud by Powers of Attorney

Elder abuse and fraud perpetrated through powers of attorney is an alarming issue that demands the attention and vigilance of all succession lawyers. As the aging population continues to grow, the vulnerability of older individuals to exploitation and mistreatment becomes increasingly evident. Powers of attorney, entrusted with significant decision-making authority, can wield substantial control over an elderly person's finances and assets. Regrettably, some unscrupulous individuals abuse this power for personal gain, leading to devastating consequences. This session provides a comprehensive analysis of elder abuse and fraud committed by powers of attorney, including:

• The prevalence and types of elder abuse and fraud perpetrated by powers of attorney
• The legal frameworks and regulations surrounding powers of attorney, including the responsibilities, obligations, and limitations imposed on attorneys to prevent abuse and fraud
• Spotlight on transfers of land via online conveyancing and the rise of elder abuse:
  • the practical/PEXA and legal requirements when transferring land pursuant to a power of attorney and how to determine when the transfer was effected under a power of attorney
  • steps prudent solicitors should take when faced with a potential transfer of land purporting to be pursuant to a power of attorney
• Preventive measures and best practices that lawyers can implement to mitigate the risks associated with powers of attorney, including thorough client assessments, effective documentation, and ongoing monitoring.
• Lessons from recent cases