High-Risk Estates: Litigation Triggers and How to Avoid Them - 5 Part on-demand webinar series for Succession Lawyers

Program 1: Between a Trust and a Hard Place: Managing Executor Conflicts in Complex Estates

When acting as executor, it’s not uncommon to wear multiple hats, particularly in large or complex estates involving family trusts and self-managed superannuation funds. While such overlap may make practical sense, it can give rise to conflicting duties and interests. For example, an executor’s obligation to call in trust assets may sit uneasily beside their duty to act in the best interets of all estate beneficiaries. Understanding how to navigate these competing duties, manage risk and progress the administration efficiently is critical. This session covers:

• Practical examples of executor conflicts, with a focus on the added complexity introduced by family trusts and SMSFs
• The rule against self-dealing - its practical operation, red flags and risk-mitigation strategies
• How practitioners can advise executors to work through conflicts in real time, including documentation, disclosure and consent steps
   

Program 2: The Price of Capacity: What Happens When Clients Can’t Instruct

Retainers and billing are central to legal practice but become fraught in succession law when a client’s capacity is uncertain. This session explores how to identify who your client is, manage a matter when capacity is in doubt and what to do when authority to instruct or pay is unclear. This session covers:

• The ethical duty to identify who the client is and assess capacity when multiple family members or entities are involved
• The consequences of entering into a retainer with a client who lacks or loses decision making capacity, including who pays and when costs may not be recoverable
• Practical strategies to manage risk through sound cost disclosure, engagement with attorneys or administrators, and defensible billing practices
• What happens when a client loses capacity during the retainer
• Acting for a client who has no capacity – what can the attorney do, who can provide instructions, what is the role of a litigation guardian
• Preparing for a capacity argument after death
   

Program 3: Superannuation Death Benefits: The New Litigation Frontier

Superannuation death benefits are rapidly emerging as one of the most litigated and complex areas of succession law. With substantial wealth now held in super funds, disputes over trustee discretion, beneficiary entitlement and the validity of nominations are increasingly landing before the courts. As this trend accelerates, succession practitioners must understand not only the law but also the practical realities of administering superannuation assets within the broader estate plan. This session covers:

• The contested landscape of trustee discretion — scope and limits of powers, evidentiary requirements, and practical dealings with trustees
• How courts have interpreted binding and non-binding nominations, and what recent decisions reveal about beneficiary entitlements
• Practical lessons for practitioners, including strategies to minimise negligence risk, respond to disputes, and integrate superannuation effectively within estate administration
   

Program 4: Caught in the Conflict: When the Solicitor Becomes a Witness

Solicitors acting in estate matters can find themselves in difficult territory when their own evidence becomes central to the dispute. Courts have long held that a solicitor who will, or may, be called to give evidence on capacity, knowledge and approval, or undue influence cannot properly also act in the administration or defence of the estate. Yet in practice, it can be challenging to identify exactly when a conflict arises and how to respond appropriately. This session covers:

• How courts have approached cases where solicitors have become material witnesses in estate disputes, including Peek v Wheatley [2025] NSWSC 554
• The ethical and professional conduct rules governing conflicts between acting and giving evidence
• The practical and reputational risks of continuing to act, including judicial criticism and adverse cost orders
• Best-practice strategies to identify potential conflicts early, manage risk, and maintain professional integrity
   

Program 5: When Promises Become Litigation: Equity, Entitlements and Samawi v Faraone

Family dealings often blur legal and equitable boundaries. What begins as an informal promise or shared understanding can, after death, spiral into disputes involving proprietary estoppel, constructive trusts and unjust enrichment. The Supreme Court’s decision in Samawi v Faraone [2025] NSWSC 970 offers valuable insight into how courts unravel these overlapping claims and determine the true nature of parties’ entitlements. This session distils the key takeaways for practitioners managing complex family property disputes involving mixed motives, disputed promises and intertwined contributions. It covers:

• How the Court identified reliance and detriment, and the evidentiary features that established a clear promise or assurance
• How the Court approached the overlap between estoppel and constructive trust arguments, and when one remedy is preferred over another
• How the Court quantified entitlement, assessed enrichment, and reconciled competing restitutionary and equitable principles
• Strategies for pleading and evidencing overlapping claims, managing inconsistent recollections, and advising clients on realistic outcomes in multi-party family disputes