Navigating Difficult Attorney, Trustee and Executor Issues in Succession Planning - recorded 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: Dodging the Hazards of Enduring Powers of Attorneys

Advice on powers of attorney is an essential part of your wills and estate practice. However, the appointment of a power of attorney creates potential for many ethical dilemmas, not least of which is conflicts of interest. Recognizing them, avoiding them or at the very least managing these risks is the subject of this session. It covers:

• The scope of agent’s authority and limitations

• Identifying conflict situations in powers of attorney

• How to sanction conflict transactions – what are the options

• Conflicts which arise before the power takes effect

• Inter vivos gifts and powers of attorney – where does it cross the line?

• Power of attorney and ademption issues

• Liability of attorney in conflict situations

• Charging clauses – ethics and conflict issues where solicitor is power of attorney

• Case update, including McFee v Reilly [2018] NSWCA 322; Re Narumon Pty Ltd [2018] QSC185

Session 2: When Executors Fall Out and Other Joint Executor Conundrums

The appointment of joint executors is not unusual. Nor is the potential for things to go wrong. This session looks at what can happen when joint executors fall out and the type of orders a court can make. It includes:

• Duties of joint executors and how they should be exercised

• Key issues to consider when deciding on joint executors:

  • Is an executor a surviving spouse?

  • Who are the beneficiaries?

  • Executors interests conflicting with beneficiaries interests

  • Complexity of estate

  • Likelihood of will being challenged

  • History of co-executors

• Executor’s obligation to explore solutions to any dispute

• Problems with settlements involving executors:

  • What do you protect?

  • What if beneficiary does not consent

  • Risks in settling

  • Mediation

• Powers of a court - removal and the appointment of an administrator

• Costs orders that can be made against warring executors

• Rights to commission where there are disputes

• Risk management to deal with executor deadlock

Session 3: When Trustees or Executors Behave Badly – Legal Parameters and Control

Recent developments in case law have highlighted an increase in executors and trustees behaving very badly. The legal issues created and how the law has responded is examined in this session, including:

• What is an invalid exercise of power by executor or trustee?

• Executors and trustees acting in breach of fiduciary obligations – what to do next

• When not acting in good faith – legal consequences and controls

• Challenging exercise of discretion by executors and trustees

• Applications for advice, directions and authorization where risk of conflict of interest

• Advising executors and trustees wearing a number of different ‘hats’

• Case update, including Re Marsella; Marsella v Wareham (No.2) [2019] VSC 65