Estate Litigation and Administration: Thorny Issues in Practice - 5 program on-demand webinar series for succession lawyers

Program 1: Urgent Applications for Limited Grants: Strategy and Procedure

In certain circumstances, it will be necessary to seek an urgent grant to carry out particular functions prior to the grant of probate or letters of administration. This session shall take a deep dive into urgent applications and consider:

• The circumstances in which an urgent grant may be needed, including protection of assets, sale of a business, seek relief of forfeiture of premises occupied by the deceased
• When to seek the appointment of an ad colligenda bona administrator, what is involved in that process and the advantages and disadvantages
• How to identify what is urgent, tips for practitioners, what questions should be asked and when to make further enquiries
• When a new director can or should be appointed and what options are available when urgent action is needed to be taken

Program 2: Acting for the Estate in Disputed Litigation

The role of the executor is critical when it comes to estate disputes. There are unique considerations that come into play as well as additional statutory duties and common law obligations. When acting for the estate in disputed litigation, it is paramount that succession lawyers keep these in mind to ensure they, and their clients, effectively and efficiently discharge their legal responsibilities. This session shall take a step-by-step guide to acting for the estate and will examine:

• The obligations of the executor and what role they play when acting for the estate in litigated matters 
• Some of the common issues executors and their lawyers experience when dealing with other parties and how to avoid them, including tips for effective communication
• Notice requirements – ensuring you do not overlook persons who should be served
• Practical steps when dealing with challenges to the will and what happens when the executor intends to make a claim on the estate themselves
• Lessons to be learned for solicitors acting for the estate following the recent decision of Jurak v Latham [2023] NSWSC 1318.

Program 3: Paying the Price: Costs in Estate Litigation

It can be a common misconception that it is the estate which pays the costs of the parties following estate litigation. While this is often a common result, the Court always retains the discretion when it comes to making orders for costs. This session shall look at:

• The types of orders the Court can make and tips for framing them
• The circumstances which trigger the cost rule and the exceptions:
  • The conduct of the deceased or beneficiaries who caused litigation
  • Circumstances reasonably justifying an investigation of the will
  • Family provision
• Recent cases where cost orders were made, including Queensland case of Hartley v Hartley (No. 2) [2023] QCA 80 and the impact that the conduct of the solicitors had on the ultimate orders made

Program 4: Probate Sans Frontieres: The Practicalities and Legalities of Administering Estates Across Jurisdictions

In our modern world, it should not be assumed or taken for granted that the assets of a deceased estate will be located locally or even within Australian borders. It is increasingly common for people to hold assets and interests in multiple jurisdictions which can create international probate issues for lawyers when it comes time to dealing with deceased estates. This session focuses on the practical issues arising from international probate matters and provides guidance on the following questions which arise when it comes to dealing with the administration of an estate in a foreign environment:

• Where should you get probate?
• What factors indicate whether it should be Australia or another country?
• Can probate proceedings be conducted in multiple jurisdictions contemporaneously?
• How do you make the decision about who obtains the primary grant?
• Is the Will even recognised in another country?
• What should you do when there are assets in other countries?
• Can the executor cross borders to receive funds and collect the assets of the deceased estate?
• Can a beneficiary in a different country claim against the estate in different countries?
• What legal work should you do (and not do) inhouse?
• How do you scope your instructions?
• When and how should you engage local legal assistance?

Program 5: Staking Your Claim: Eligibility and Evidence Issues in Family Provision Claims

Not every disgruntled family member is able to make a family provision claim. A key component is determining whether a claim has a basis in the first place, as well as adequately addressing and proving need. This session delves into the criteria determining eligibility for asserting a claim against an estate and explores the evidentiary requirements essential for satisfying the court. It covers:

• Who’s in and who’s out – navigating the categories of eligible claimants
• Scope and extent of full and frank disclosure regarding financial position and need
• Evidence of relationships - what do the courts need to see?
• The importance of timing – key lessons from Re Haddow: Haddow v Haddow [2021] VSC 553
• War stories and learnings from recent cases