When the Gloves Come Off in Estate Administration – recorded lunchtime online conference

Family provision claims seem to be on the rise. A spate of recent high-profile cases have been making their way through the appellate courts, including all the way to the High Court. This session examines these recent decisions, the trends we are seeing and the lessons for practitioners in this dynamic area. This presentation will cover:

• Eligible classes of applicants – who now fits the bill? From de facto to step children

• What factors does the court need to consider?

• Was there a moral duty to provide?

• Did the distribution of the estate fail to make adequate provision?

• Was the eligible person dependent on the deceased?

• How appellate courts deal with family provision matters

• Challenges to findings of fact, exercise of discretion and challenges to statements of law

• Summary dismissal claims and family provision matters

• Recent cases

Session 2: Equitable Remedies and Estate Litigation

Equitable remedies in estate litigation may often be a more appropriate claim or be pleaded in conjunction with other claims as alternate relief. This session considers when these remedies may be relevant, what remedies are available, when they should be claimed and covers:

• Equitable remedies and elements

  • Secret trusts and semi secret trusts

  • Promissory estoppel and detriment in reliance on the promise

• Equitable estoppel – when is it appropriate to plead?

• Constructive trusts and resulting trusts

• Equitable severance – when will equity recognise equitable severance of jointly held property?

• Recent cases

Session 3: Obtaining Judicial Advice in Wills and Estate Matters

When things turn ugly, a prudent executor or trustee should consider whether to seek judicial advice to reduce the risk of claims against them. The session looks at the issues in obtaining judicial advice in wills and estate matters and how it can be used as a risk management tool, including:

• When do you know it is time to seek juridical advice?

  • Commencement of legal proceedings

  • Interpretation of will or trust deed

  • Varying powers

  • Course of action which may create disputation in beneficiaries

• Legislative basis for judicial advice applications

• What are the essential elements of judicial advice applications?

• The statement of facts in judicial advice applications

• Judicial advice and the right of indemnity

• Nature and effect of judicial advice – the judicial advice direction

• When will judicial advice be refused?

• What happens if judicial advice is not obtained?

• Costs issues in obtaining judicial advice