Structuring the Will for Maximum Impact – 3 program on demand webinar series

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

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

When Meaning and Intent of Wills is Unclear

Poor drafting and ambiguous terms in wills may complicate estate administration and lead to disputes. This session looks at the court’s approach to ambiguity, including:

• How do courts interpret unclear wills?
• Giving effect to the intentions of the testator - what does this really mean?
• The process of reconciling conflicting provisions of a will
• What happens with an obvious ambiguity or omission?
• When can extrinsic evidence be used to resolve an ambiguity?
• Rectification for unilateral mistake
• Case update, including Benaroon Pty Ltd v Larmar Ors [2020] QCA
• Prevention better than cure - key drafting strategies to minimise risk of ambiguity