Family Provision Claims Review
Family Provision claims are on the rise. Don’t miss this chance to work through a range of comprehensive and focused sessions tackling the key issues facing all wills and estate disputes practitioners. Examine the latest cases, estrangement and disentitling conduct, blended family issues in Family Provision claims and more.
Description
Attend and earn 4 CPD points including:
1 point in Competency Area 3: Ethics & Professional Responsibility
3 points in Competency Area 4: Substantive Law
This program is based on WA legislation
Chair: Elmi Carlean, Barrister, Francis Burt Chambers; Recommended Wills & Estates Litigation Junior Counsel, Doyle’s Guide 2019
9.00am to 9.45am: Estrangement as it Pertains to Family Provision Act Claims
- The nature and significance of estrangement
- Estrangement, as a factor that bears upon the totality of the relationship
- Interrelationship with disentitling conduct
- Relevance to the jurisdictional test and to the exercise of the discretion
- Case Study: Underwood v Gaudron [2014] NSWSC 1055
- Case Study: Kiernan v Cranston [No. 2] [2019] WASC 410
Presented by Robert Nash, Barrister, Francis Burt Chambers; Accredited Mediator
9.45am to 10.30am: Blended Families and Family Provision Claims
- Blended families and complexities in claims under the Family Provision Act 1972 (WA)
- Competing claims: widows, children and step-children
- Applicable legal principles
- Making applications for provision under the Family Provision Act 1972 (WA)
- Recent cases
Presented by Kellie Woods, Special Counsel, Kott Gunning Lawyers
10.30am to 10.40am Break
10.40am to 11.25am: Fully Administered Estates and Their Impact on Family Provision Act Claims
- Is there an ‘estate’ available for which the court can make an order?
- Claims under s65 of the Trustees Act 1962 (WA)
- Leave vs no leave?
- Extensions of time
Presented by Craig Gregson, Legal Practitioner Director, Gregson &Associates; Recommended Wills & Estates Litigation Lawyer, Doyle’s Guide 2020 and Recommended Wills, Estates & Succession Planning Lawyer, Doyle’s Guide 2019
Competency Area 3: Ethics & Professional Responsibility
11.25am to 12.25pm: Ethical Obligations of Solicitors to Testators
Explore key ethical considerations when a potential claimant under the FPA is left out and inadequate provision is going to be made in a will.
- Duty of care and ethical issues
- Case review and update
- Pre and Post - Badenach v Calvert [2016] HCA 18
- Valid versus effective wills
- Insufficient to prepare the a will solely based on client instructions alone; investigation required, how much and to what extent?
- Involving the client’s other professional advisors: accountants, financial advisers
- Family Provision Act 1972 (WA)
- Who are dependants or potential claimants?
- What is adequate provision?
- Managing risk
- Risk vs reward
- The curse of the ‘simple will’
Presented by Hugh Cahill, Head of Practice – Commercial & Succession Planning, Cullen Macleod Lawyers; Recommended Leading Wills & Estates Litigation Lawyers and Recommended Wills, Estates & Succession Planning Lawyers, Doyle’s Guide 2020
12.25pm to 1.10pm: Complex Executor/Administrator Issues in Family Provision Claims
- Extensions of time where an executor/administrator dies or ceases to act
- Executors defending Family Provision claims
- Position of an executor/administrator with respect to a deceased’s superannuation entitlement(s) and any implications that may have for Family Provision claims
Presented by Dr Peter MacMillan, Barrister, Francis Burt Chambers; Leading Wills & Estates Litigation Junior Counsel, Doyle’s Guide 2019
Presenters
Elmi Carlean, Barrister, Francis Burt Chambers
Elmi Carlean has been a member of the Western Australian Bar Association practicing from Francis Burt Chambers in Perth since 2015. Elmi has particular expertise as an advocate, and has appeared as Counsel in all State and Federal Courts and Tribunals. She practices predominantly in deceased estates, family law, commercial litigation, taxation law, employment law and migration law. She also has a strong interest in mediation and commercial negotiation, having completed training both as a mediator and in commercial arbitration.
Robert Nash, Barrister, Francis Burt Chambers
Robert Nash has been admitted to legal practice since 1987. He has practiced as an independent barrister for 20 years at Francis Burt Chambers. He is a member of STEP and is the non-executive chairman of an ASX listed mining company. In recent years his practice at the Bar has been primarily providing advice and acting as counsel in the areas of succession, estate administration, trusts, real property, and military discipline law.
Kellie Woods, Special Counsel, Kott Gunning Lawyers
Kellie was admitted to the High Court in 2007 and is also admitted to practice in Victoria.
She has a wide range of litigation experience in the Federal Court of Australia, Federal Circuit Court, Supreme Court of Western Australia, District Court of Western Australia, District Court of Appeal, the Magistrates Court and the State Administrative Tribunal. Kellie has substantial experience in drafting estate planning documents, trust documents and other commercial and business documents. Kellie regularly participates in mediations, pre-trial conferences, and other alternative dispute resolution processes.
Craig Gregson, Legal Practitioner Director, Gregson &Associates
Craig was admitted topractice as a Barrister and Solicitor of the Supreme Court of Western Australia in November 2011 and the High Court of Australia in December of 2014.
Craig’s private practice includes contentious and non-contentious probate, succession law litigation and estate planning. He holds a Bachelor of Laws (LLB) from Edith Cowan University (WA) and a Masters of Applied Law majoring in Wills and Estates Practice (LLM)(NSW) from the College of Law. Craig is a current Ph.D candidate at the University of Western Australia in the area of succession law reform.
Hugh Cahill, Head of Practice – Commercial & Succession Planning, Cullen Macleod Lawyers
Hugh also practices across all areas of Commercial Law, Property Law, Corporate Governance, Business Succession Planning and Disputed Estates. He acts for and represents private clients, small to medium business owners, not-for-profit organisations and indigenous organisations. Hugh has tutored and lectured at The University of Western Australia, and University of Notre Dame in areas including property law, corporations’ law, finance law and succession law. Hugh is a fellow of the Taxation Institute of Australia and a member of the Australian Institute of Company Directors.
Dr Peter MacMillan, Barrister, Francis Burt Chambers
Peter MacMillan is a Barrister at Francis Burt Chambers. He practices principally in the areas of equity and wills and estate litigation, as to advice, in Court and on appeal. He is a member of STEP, a visiting Fellow at the University of Western Australia and a member of the Attorney General's Working Party on Succession Law Reform. He has published a number of journal articles and seminar papers and is the co-author of Wills, Probate & Administration Service (WA) (LexisNexis).