Family Provision Claims

“ Contents ”

“ Contents ”

“ District Court NSW Supreme Court NSW ”

“ Estates (NSW) Wills, Powers of Attorney & Enduring Guardianship ”

“ The client will be a person who has had either a blood or other close relationship with the deceased and has received what they consider to be inadequate or no provision at all from the testator’s will or inadequate provision under the laws of intestacy. Clients often have no idea whether they ... ”

“ Challenging a will questions its validity. Contesting a will questions the fairness of its provisions. ”

“ Claims under the Succession Act involve a three-stage process: The claimant must establish eligibility. ”

“ Be active in bringing the client’s claim as any proceedings for provision must be commenced within 12 months of the date of death of the testator. If you are instructed to bring a claim and time is running out it may be worthwhile to commence proceedings before negotiations are commenced or ... ”

“ If you have negotiated for as long as you can without a settlement, or the estate is not willing to negotiate at all, you must commence proceedings on behalf of the client within 12 months of the date of death of the testator by filing a summons in the Supreme Court Equity Division, seeking ... ”

“ A client may have already had orders made by the court for provision from an estate but due to a significant change in circumstances require further provision. Any application of that nature is made by commencing fresh proceedings seeking orders under ss 59 and 60, but note the major qualification ... ”

“ If a grant has been taken out by the executor or administrator the issue will not arise. However, if there is no grant and it is time to commence proceedings and the legal personal representatives do not intend to take one out, the plaintiff, as an eligible person, will have to take out a limited ... ”

“ Schedule J Supreme Court Rules If you are acting for more than one claimant on a particular estate the claims can all be brought in the one summons as ‘first plaintiff’, ‘second plaintiff’ and so on. ”

“ Consider whether it is appropriate to brief counsel to appear on interlocutory steps, including drafting of affidavits to ensure evidence is complete and in proper evidentiary form, to appear on mediation or on the hearing. Consider the need to brief counsel for the final directions hearing, or ... ”

“ Proceedings must be commenced within 12 months of the date of death of the testator. Otherwise leave must be sought: s 58 Succession Act. If the claim is out of time the client must also seek leave to bring the claim pursuant to s 58(2). That order is sought in the summons. The application for ... ”

“ Provision is sought from the estate and/or ‘notional estate’ of the deceased: ss 59 and 60 Succession Act. You should always consider including a claim under notional estate in the summons because at the time of commencing proceedings you will probably be unaware of what distribution, if any, has ... ”

“ There are limitations on the court’s power to designate property as notional estate. These are found in ss 87, 88, 89 and 90 of the Act. Section 90 specifically refers to out of time or additional provisions. The effect of an order designating property as notional estate is that to the extent the ... ”

“ Section 66 Succession Act empowers the court to make a range of ancillary orders to give effect to an order for provision including but not limited to: orders for transfer of property; ”

“ Section 65 Succession Act When taking instructions from the client give consideration as to the form of provision the client may be awarded. The court has a wide discretion as to the manner in which provision can be made. It can be by way of: ”

“ The summons commencing the application should identify the date of death of the deceased. On the filing of the summons there will be a return date allocated before the Family Provision List Judge on the first Friday after 28 days of the date of its filing. ”

“ The plaintiff’s substantive affidavit should follow the format set out in Annexure 1 to Practice Note No. SC Eq 7. As can be seen the information it must contain is quite extensive. Do not file verbose affidavits with extensive and often irrelevant family histories. ”

“ Where expert evidence is required the provisions of Practice Note No. SC Eq 5 are to be applied, with any necessary adaptations (paragraph 22 Practice Note No. SC Eq 7). ”

“ Paragraph 27 of Annexure 1 to the practice note (the plaintiff’s affidavit) refers to evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased person. Section 100 Succession Act sets out the regime for admission into evidence of oral and ... ”

“ Discovery is not usually available in equity proceedings. Practice Note No. SC Eq 11 Disclosure in the Equity Division makes it difficult to obtain disclosure in such proceedings – that is, the disclosure necessary for the resolution of the real issues in dispute. However, discovery may be ... ”

“ At any hearing before the Family Provision List Judge each party, not appearing in person, shall be represented by a legal practitioner familiar with the proceedings (paragraph 25.1 and 25.2 practice note). You should communicate prior to the first directions hearing with the other party’s legal ... ”

“ This is covered by paragraph 9 of the practice note. The administrator will be required, as one of the directions made at the first directions hearing, to serve: the administrator’s affidavit, which really provides necessary information; ”

“ As with any proceedings, at all times the parties must consider the making of an appropriate offer of compromise under Part 20 Uniform Civil Procedure Rules or a Calderbank offer. Rule 20.26 UCPR requires that a notice of offer must bear a statement to the effect that the offer is made in ... ”

“ Practice Note No. SC Eq 7 If the matter is referred to court annexed mediation, the originals of the administrator’s affidavits are to be filed in the Registry no later than seven days before the date of the mediation with a covering letter confirming the date of the mediation (paragraph 12 ... ”

“ If the matter has not settled at mediation, a timetable is to be made for the preparation of the matter for final hearing. The timetable must address filing and service of any updating affidavit of a party or beneficiary, and of any affidavits in reply. The court has made available to the parties ... ”

“ Paragraphs 17.1 and 18 of the practice note require: a plaintiff’s final affidavit of costs; ”

“ The directions made at the final directions hearing provide the details as to what needs to be attended to some time before the actual hearing date. The evidence will be by affidavit. Consideration needs to be given, pursuant to UCPR 35.2, as to notices for a defendant to attend for cross ... ”

“ The number of references to costs in this guide is not an accident. Costs in Succession Act proceedings are, for what are straightforward proceedings, disproportionately high and have been the subject of considerable comment by the justices of the court. If an order for provision is made but costs ... ”

“ If a family provision order is made, by consent or otherwise, the administrator must (unless the court otherwise orders) within 28 days after the order is recorded in the court’s computerised court record system, lodge in the probate registry: the probate, letters of administration or copy of ... ”