Challenging the Will: When the Gloves Come Off in Estate Litigation - 5 program on demand webinar series

Program 1: What, When and How: Knowledge and Approval in Estate Litigation

The recent case of Lewis v Lewis [2021] NSWCA 168 highlights the challenges of overturning the presumption of knowledge and approval, even where capacity may not be an issue. This session will examine the important lessons from this case for succession lawyers, including:

• Why testamentary capacity is only part of the equation
• Key elements of knowledge and approval
• Rebutting the presumption – what evidence is required?
• Consequences of failure to prove knowledge and approval, including will invalidity and severance
• Is it enough that the will-maker has read the will?
• Court assessment of knowledge and approval in the event of:
  • Mental acuity and comprehension issues
  • Suspicious circumstances
  • Unsophisticated will-makers
  • Complex financial circumstances and arrangements
• How can advisers best ensure that knowledge and approval by their client is satisfied?
• Tips for client management, record keeping and will drafting
• A discussion of recent cases

Program 2: The Power of Persuasion: Will Challenges for Undue Influence

Economic challenges and an ageing society have resulted in the elderly becoming increasingly vulnerable to influences from family for financial support. But when does such behaviour change from suggestion to influence and when should a will be challenged on the basis of undue influence? This session examines the law of undue influence and provides a guide to legal practitioners faced with claims of this nature, including:

• Red flags and other signs of undue influence
• Where to draw the line between suggestion, persuasion and undue influence
• What should a solicitor do if they suspect their client has been subject to undue influence?
• Who has standing to make a claim of undue influence following death of the will-maker?
• What standard of proof is required?
• Where undue influence is proved what effect will the finding have on the will?
• Recent cases including Hayward (as Executor of Felton Estate) v Speedy Felton [2021] NSWSC 943; Estate of Rofe [2021] NSWSC 257

Program 3: All in the Family: Lessons from Family Provision Cases

The family provision jurisdiction has provided an outlet for claims by dissatisfied family members seeking a slice, or a bigger share, of the inheritance pie. This session will examine some general themes in these cases and provide a guide to what practitioners should be advising their clients before bringing a family provision claim, including:

• Does the mantra “it’s my money and I can leave it to whoever I choose” have any weight anymore?
• Eligibility requirements for making a claim for insufficient provision
• How far will the courts consider fairness or moral duty over relationship circumstances?
• Acting for the claimant and strategies for overcoming obstacles including:
  • Estrangement
  • Bad relationships
  • Unequal distribution
• Presenting evidence and what the courts want to hear
• Costs considerations and the risk of claimant liability for costs
• Case law update

Program 4: Promises Promises: Litigating Proprietary Estoppel Estate Claims

A number of recent decisions highlight the availability of proprietary estoppel as an alternative to a family provision claim in challenging the will maker. This session will explore the evidentiary and other requirements of bringing a claim in estoppel, including:

• Common examples of proprietary estoppel
• Who has standing to bring a claim?
• Time limits for making a claim
• What orders can the claimant seek?
• Proving the promise – what evidence is required to show:
  • The promise was made
  • Reliance on the promise
  • Reliance resulted in a detriment to the claimant
• Will the court always order specific performance?
• Cases including Re Mahoney [2015] VSC 600; Moore v Aubusson [2020] NSWSC 1466; Nendy v Armstrong Ors [2020] QSC 380; Harris v Harris [2021] VSCA 138

Program 5: Adding Up the Costs in Estate Litigation

Courts have a discretion when ordering costs, and it is a misconception that the estate will always pay the costs of litigation. This session will look at the changing nature of cost allocation and orders in estate litigation, including:

• Do costs always follow the event?
• What are the cost rules in estate litigation and how far can judges deviate from the rules?
• Issues in costs allocation including:
  • The cause of the litigation
  • Investigations as a result of capacity or drafting
• The proportionality principle: Oslen v Oslen [2019] NSWSC; Harris v Harris [2018] NSWCA 334
• Cost consequences for executors behaving badly
• Advising clients on the prospects of success and cost implications for bad or unfollowed advice
• When will a court impose personal cost orders against practitioners?
• Recent cases including: The estate of Milan Zlatevski; Geroska v Zlatevski (No 2) [2020] NSWSC 388; Re Veca [2015] VSC74; In the Estate of Amuso (No 2) [2021] SASC 61; Re Howden; Howden v Rackshaw [2020] VSC 315; Trinder v Ciniglio [2020] QSC 176