The Succession Planning Lifecycle: From Structuring to Disputing the Will – 5 program on demand webinar series

Program 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

Program 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

Program 3: Practitioner Liability in Wills and Estate Matters - A Precautionary Approach

This session examines some precautionary risk management tips for wills and estate practitioners. It includes:

• Liability of practitioner in wills and estate matters - an overview
• Timeliness, prompt attention and file notes on will and estate matters
• The lawyer’s duty in drafting wills - to whom is it owed?
• Liability to persons who do not receive an intended benefit under a will
• Right of disappointed beneficiary to recover damages
• Are there any limitations on the practitioner duty of care?
• Risks in not clearly following client or courts instruction
• Case update

Program 4: Negotiating and Drafting Terms of Settlement in Wills and Estate Matters

Negotiating and settling wills and estate disputes require refined skills. This session looks at what these are, with practical advice on implementation. It includes:

• Understanding the timing of negotiations and its practical effects
• Process and procedure in disclosing financials
• Determining the property pool
• Having some bargaining power whilst maintaining ethics and fairness
• Knowing when to reach the settlement middle ground
• Construction of terms of settlement - what to put in and what to leave out
• How to ensure terms of settlement are binding
• Case study - a settlement agreement checklist

Program 5: Beware of Promises: When will Proprietary Estoppel Trump a Will?

When will estoppel for breach of promise override the contents of a will? The recent case of Moore v Abusson has shone a spotlight on the power of estoppel to trump a will. This session examines the key issues, including:

• When will an understanding between the deceased testator and another party give rise to a claim of estoppel?
• Navigating the key elements of estoppel in the context of will disputes
• When is estoppel preferable to a family provision claim?
• Key tips and tricks for preventing estoppel claims
• Case update, including Moore v Abusson [2020] NSWSC 1466; Gill v Garrett [2020] NSWSC 795