Creating Certainty and Maintaining Control in the Estate Plan – 5 program on-demand webinar series

Program 1: Preparing for the Long Haul: Intergenerational Family Business Planning

Laying the groundwork for an intended long-term family business brings with it significant challenges and forethought. This session will examine some of the options and strategies for this significant estate planning activity, including:

• What does your client really want? Asking the right questions
• Strategies for family consultation, information management and decision-making
• Understanding the pros and cons of:
  • MOU’s
  • family Constitutions
  • shareholder agreements
• Key issues for family businesses including authority and control, operational management and dispute resolution
• Content and drafting guide to key documents and agreements
• What can go wrong will go wrong - tips for pre-empting problems and risk minimisation planning
• Building in the parachute for when all else fails

Program 2: More than a Matter of Housekeeping: Life Tenancies and Rights to Reside

Complex family dynamics arising from successive relationship formations have resulted in the family home becoming a central issue in estate planning. This session will take a deep dive into the risks and benefits of the various options for limited “housekeeping” for the partner left behind, including:

• The fundamental differences between a life tenancy and a right to reside
• What conditions or limitations can be attached to the grant?
• The ongoing role of the executor
• Tips for taking ageing and health into account - can the property be used to fund aged care?
• When can a property be assumed to have been vacated? Buy-outs and other options for remaindermen
• Financial and taxation consequences for the estate and the rights holder
• Drafting guide and strategies for avoiding challenges
• Worked examples

Program 3: Let Go from the Get Go? Incremental Control Mechanisms in Testamentary Trusts

The desire to rule the family from the grave through a testamentary trust can be overwhelming but can prove a significant impediment with unintended consequences. This session will explore the stepped options for control of testamentary trust decisions and provide guidance on what practitioners need to consider when advising their clients, including:

• Why a testamentary trust can be attractive to controlling will-makers
• Asset inclusion and management considerations
• When is a capital reserved trust appropriate?
• Trustee selection and powers to achieve desired outcomes
• Determining levels of decision-making from specific to discretionary
• Examples of different levels of trust control and consequential outcomes
• Why effective dispute resolution mechanisms are necessary for tightly controlled trusts
• Drafting guidance and techniques
• Lessons from the courts on testamentary trust failings and risks in “controlling from the grave” cases
• Advising clients on getting the balance right in testamentary trusts

Program 4: Not Happy Jan: Challenging Discretionary Trust Decisions

As family trust control starts to move down the food chain from elderly and deceased parents to adult children, the quality of discretionary decision-making has come under increasing review and dissatisfaction, as evidenced by recent cases. This session will take an in-depth look at discretionary trustee decision-making and the role of the courts, including:

• What must a trustee consider in exercising their discretion?
• What are the grounds for challenging a decision?
• Who can challenge the decision and what evidence do they need?
• What access is available to information and documents concerning the decision?
• What is the responsibility and accountability of professional advisers to the trustee?
• What will the courts consider and what remedies are available?
• Should discretionary decision-making be restricted by a trust deed? Tips for drafting limitations
• Recent cases including Owies Owies v JJE Nominees Pty Ltd [2022] VSCA 142; Cardaci v Filippo Primo Cardaci as executor of the estate of Marco Antonio Cardaci [2021] WASC 331; Baba v Sheehan [2021] NSWCA 58; Wareham v Marsella [2020] VSCA 92; Mandie v Memart Nominees Pty Ltd [2020] VSCA 281; Trani v Trani [2018] VSC 274

Program 5: Keeping a Tight Hold of the Reigns in Enduring Powers of Attorney

Enduring powers of attorney are an indispensable link in the estate planning chain of documents, yet in practice failures in drafting and abuse of the power can cause untold damage and unforeseen consequences. This session explores why a power of attorney is not a “set and forget” document and what controls need to be put in place to achieve the intended result, including:

• Key decisions in setting up an enduring power of attorney
• Appointments and alternatives - how many attorneys are needed?
• Drafting guide for special conditions, limitations and restrictions
• Attorney misbehaviour cases and examples, including Mentink v Olsen [2020] NSWCA 182; Turner v O’Bryan-Turner [2022] NSWCA 23
• Challenging attorney’s abuse of power - practical and legal considerations
• A practitioner’s responsibility for activity by the attorney
• How to minimise risks including conflict of interest and elder abuse
• Recent law reform activity on enduring powers of attorney and proposed reforms