Challenging a Will: When the Gloves Come Off - recorded half-day online conference

You can put your staff in the boardroom and watch it there. You can watch it on your computer or on your portable electronic device. All for the same low price.

The conference will be based on our highly successful video webinar technology: there’ll be a chairperson, a panel of experts, presentations and discussion.

Session 1: All in the Family - Complex Family Provision Claims

Recent case law in family provision matters highlight the complexity of modern family arrangements and the willingness of disgruntled parties to stake a claim in the deceased’s estate. This session provides a round-up of recent cases and the lessons they contain for practitioners. It covers:

• Understanding what is meant by ‘responsibility to provide’

• Estrangement and when it is not a bar to proceedings?

• Claims by adult children and how they can go wrong

• Is a divorce settlement fatal to a family provision claim?

• Risks where there is no full and frank disclosure in applications

• Case update, including Stone v Stone [2019] NSW SC 233

Session 2: Challenging Wills for Lack of Knowledge and Approval

The requirement that a testator know and approve the contents on their will is a separate and distinct requirement for validity. It is being increasingly used as a weapon by disappointed beneficiaries where it is not possible to prove a lack of capacity or undue influence. This session examines the interplay between complex wills and alleged lack of knowledge and approval, with a focus on the following:

• Testator’s knowledge and approval essential to validity - what are the parameters?

• Relationship between testamentary capacity and knowledge and approval

• Establishing the true intention of the testator

• Who bears the onus of proof and what is the relevant standard?

• What presumptions apply and how can they be rebutted?

• Doctrine of suspicious circumstances - how does this apply and when?

• Factors relevant to knowledge and approval:

  • absence of legal advice

  • post-will statements of testator

  • testator disabilities

  • relativities to previous wills

  • behaviour of primary beneficiaries

  • will complexity

• Use of medical evidence in knowledge and approval cases

• Obtaining evidence - when can you obtain access to a solicitor’s file?

• Case update

Session 3: The Costs of Contentious Probate: Who Foots the Bill?

In general litigation the rule is that costs usually follow the event. This is not always the case in contested probate matters. With a spate of recent cases, including a High Court decision, it’s never been more important for practitioners to understand cost risk and how to factor it into your decision-making. This session covers:

• When might costs not be paid from the estate?

• Requiring the claimant to prove the will and its cost consequences

• Circumstances where a court will not make a cost order against the defendant

• Using cost rules tactically and their associated risks

• Costs orders associated with lodging caveats and related matters

• The benefits of executors being cooperative even towards those contesting a will

• The importance of disclosing supporting evidence as soon as possible

• Use of offers of compromise and cost consequences

• Use of Calderbank offers and their cost consequences

• Costs associated with applications for rectification

• Case update, including Nobarani v Mariconte [No.] [2018] HCA 49, Epov v Epov [2018] NSWSC