Testators Family Maintenance Claims and Estate Disputes
Estate disputes are rising. We have brought it all together for you. Drawing from recent cases, review TFM claims by adult children. Acquire a deeper understanding of the tax issues in TFM claims. Analyse how to handle family law and trusts law issues in your TFM claims and all the essential TFM practice and procedure. Take away valuable tips on other litigation matters involving unconscionable conduct, undue influence and elder abuse plus, equitable estoppel claims and constructive trusts. WEB2211V07Z
Description
Attend and earn 6 CPD units including:
5 units in Substantive Law
1 unit in Professional Skills
This program is based on VIC legislation
Session 1
Complex Issues in TFM Claims
Chair: Kathy Wilson, Principal, Kathy Wilson Legal; Accredited Specialist in Wills and Estates Law; Leading Wills, Estates & Succession Planning and Wills & Estates Litigation Lawyer, Doyle’s Guide 2021
9.00am to 10.00am Crossover of TFM Claims with Trusts and Family Law
- Impact of the crossover
- Issues with timing
- Strategic decisions
- Settlement options
Presented by Joseph Carney, Barrister, Svenson Barristers
10.00am to 11.00am Taxation Imperatives in Resolving TFM and other Claims
- Tax implications of transfers of estate assets to beneficiaries in a deceased estate context
- Family provision claims: effective use of the CGT rollover provisions
- Victorian duty implications on transfers of real estate: settlement vs court orders
- Disputes and non-estate assets
- Payment of superannuation death benefits in a tax-effective manner to settle a dispute
- Factoring in family discretionary trusts to satisfy a beneficiary’s claim: transfer of control and resettlement risk
Presented by Nathan Yii, Principal Lawyer, Nathan Yii Lawyers; Chartered Tax Advisor; SMSF Specialist Advisor; Preeminent Wills, Estates & Succession Planning Lawyer and Leading Wills & Estates Litigation Lawyer, Doyle’s Guide 2021
11.00am to 11.15am Morning Tea
11.15am to 12.15pm TFM Claims by Adult Children
- How to frame the claim and what won’t work
- How step-children are treated
- Are claims becoming harder to establish and why?
- Recent cases
- Costs issues
Presented by Russell Robertson, Director, O’Farrell Robertson McMahon; Accredited Specialist in Wills and Estates
Professional Skills
12.15pm to 1.15pm TFM Practice and Procedure: Essential Aspects
- Time limits/extension of time in unusual circumstances
- Institution of proceedings
- Plaintiff’s affidavit
- Defendant’s affidavit
- Alternative dispute resolution
- Settlement and orders
- Costs
Presented by Jennifer Maher, Director, Velocity Legal; Accredited Specialist in Wills and Estates Law; Leading Wills & Estates Litigation Lawyer and Leading Wills, Estates & Succession Planning Lawyer, Doyle's Guide 2022
Session 2
Equitable Remedies and Unconscionable Conduct
2.00pm to 3.00pm Unconscionable Conduct and Undue Influence in Elder Abuse and Estate Litigation Matters
- Use of unconscionable conduct and/or undue influence as a means of setting aside inter vivos property transactions
- When might a person transferring property be considered to be under a “special disability”?
- What knowledge must the gift recipient have of the special disability for equity to intervene?
- Actual undue influence Vs presumed undue influence – when will undue influence be presumed?
- The shifting burden of proof: how can presumed undue influence be rebutted?
- Practical examples and recent case update
Presented by Anna Hacker; Client Director, Pitcher Partners; Accredited Specialist in Wills and Estates
3.00pm to 4.00pm Equitable Estoppel and Constructive Trusts in Estates Disputes
- Explore the various elements of equitable estoppel claims
- Analyse the imposition of a constructive trust as a remedy
- Practice points and tips on pleading equitable claims
- Practical examples and a case update
Presented by Joshua Sheppard, Barrister and Adam Craig, Barrister, Greens List
Testimonials
“Very practical content and incredibly useful”
Presenters
Kathy Wilson
Kathy Wilson is the principal of Kathy Wilson Legal. She is accredited by the Law Institute of Victoria is a Wills and Estates Specialist and is also an accredited Mediator. Kathy has worked almost exclusively in the area of Succession Planning, Wills and Estates for more than twenty years. Kathy has a keen interest in promoting legal education in the community. She has conducted many seminars and workshops for practitioners, paralegal staff and members of the public. Her presentations focus on issues arising in wills, estate administration and related litigation as well as powers of attorney and guardianship issues. Kathy serves on numerous education and advisory committees including the Law Institute of Victoria Succession Law Committee and the Elder Law Committee; the Australian Law Council Elder & Succession Law Committee; Supreme Court and County Court User Groups and the Council of the Institute of Legal Executives.
Nathan Yii
Nathan is the Principal Lawyer, Chartered Tax Advisor and an accredited SMSF Specialist AdvisorTM of the Melbourne based legal practice, Nathan Yii Lawyers. He is a graduate of Melbourne Law School and holds a Bachelor of Commerce (Accounting), a Bachelor of Laws (Hons) and a Master of Laws. Nathan is also recognised in Doyles Guide as both a leading Wills, Estates & Succession Planning Lawyer and Wills & Estates Litigation Lawyer in Victoria. Nathan works with accountants, financial planners and other lawyers to achieve their clients structuring and estate planning objectives, factoring in taxation, asset protection, SMSF compliance and dispute prevention. He consults to family businesses and family offices of high net worth individuals around Australia. Nathan also acts for clients in trusts, estates and SMSF dispute matters in the hope of resolving matters in a tax effective manner. Nathan is a regular presenter in his areas of interest and expertise and regularly presents for organisations and practitioner discussion groups throughout Australia. He is also an adjunct lecturer and advisory committee board member for the Estate Planning Practice Specialisation in the Master of Laws program at the College of Law. Nathan was awarded the Tax Institute of Australia’s National Dux Award for CTA3 Advisory and the prestigious Justice Graham Hill Scholarship in 2017. He was subsequently appointed as a member of the Education Quality Assurance Board for the Tax Institute’s higher education courses and CTA program.
Russell Robertsons
Russell Robertson has been a lawyer for 35 years. He became an accredited wills and estates specialist in 1993 when the first group of specialists in this area were assessed and he has continued to hold that accreditation. Russell was an instructor at Leo Cussen Institute in the area of wills and deceased estates for 20 years. He was a member of the Law Institute of Victoria Wills and Estates Specialisation Advisory Committee for 10 years and a member of the Law Institute of Victoria Succession Law Committee for 15 years. Russel has also been a member of the law Institute of Victoria Council and a past president of the Bendigo Law Association.
Jennifer Maher
Jennifer Maher has particular expertise in advising private businesses and high net worth families and individuals in relation to wealth transfer, asset protection, trusts, business structuring and succession planning. Jennifer practises extensively in private client services, which incorporates will making, estate planning, estate litigation, trust law, attorneyship, guardianship and aged care. Jennifer has handled a large number of family provision claims and has been involved in numerous estate and trust litigation cases as well as a number of significant cases in wills, estate and equity matters including cy-près applications. Jennifer has also been appointed as a litigation guardian to protect the interests of minors or persons under a disability, whose interests are affected by a will challenge. Jennifer's clientele includes private clients, businesses, high net worth clients, trustee companies, private and public corporations, private family and business trusts. Jennifer practice also includes assisting families with their aging loved ones, including assisting and advising attorneys and guardians as to their duties, assisting with the transition to aged care and appearing at VCAT in contested administration and guardianship disputes.
Anna Hacker
Anna has been practising as a legal practitioner for over a decade and is an accredited specialist in the area of Wills and Estates. Prior to transitioning to the trustee company industry, she worked in private practice, focussing on the field of Elder Law, gaining experience in estate litigation and administration. Anna graduated from Monash University with an honours degree in both Law and Arts and completed an Honours Thesis analysing a series of letters between family members, some of whom reached Australia as Jewish refugees escaping Vienna in 1938 with on location research of which was performed in Berlin at the Freie Universitaet. Anna serves as a member of the Law Institute of Victoria, STEP and Macleod College School Council. A regular presenter at seminars relating to estate planning, litigation and administration, Anna also prepares papers and articles for peers as well as clients to promote a better understanding of succession law.
Joshua Sheppard
Joshua practices in trusts, equity and probate at the Victorian Bar. He was an associate to the Honourable Justice Moore of the Supreme Court of Victoria and assisted his Honour with family trusts and wills and estates matters. Prior to being called to the Bar, Joshua practised as a solicitor at Allens and the Victorian Government Solicitor’s Office in litigation. He is currently teaching constitutional law to undergraduate students at Deakin University. Joshua is reading with Tom Clarke and his senior mentor is Richard Knowles KC.
Adam Craig
Adam practices in wills, trusts, equity, probate, tax, and property. He is briefed regularly in testator family maintenance (TFM) disputes in the County Court and the Supreme Court, and in equitable claims, where probate is contested, and in applications involving estate or trust administration. Adam also provides specialist advice in relation to the taxation of trusts and deceased estates.