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Family Provision Claims

This comprehensive and practical publication provides complete coverage of family provision claims, when acting for either the plaintiff or the estate.


The guide provides detailed and easy to follow commentary on the three-stage process applicable to family provision claims and allows the practitioner to provide accurate initial advice and conduct a matter from negotiation through to settlement or hearing.


Practical commentary on current practice directions and authorities on key issues are also provided. 


Recent updates to this publication can be viewed on Obiter - our News & Updates site.



MATTER PLAN
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    • “ An appointment of enduring guardian by instrument under the Guardianship Act 1987 allows a person (appointor) to appoint another person (guardian) to make medical and lifestyle decisions for them should they become incapable of doing so themselves. It is an entirely separate and distinct power from ... ”
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    • “ Part 2 of the Guardianship Act 1987 allows a person to appoint guardian for themselves. Part 3 of the Act also allows the Guardianship Tribunal, a division of the NSW Civil and Administrative Tribunal, or the Supreme Court to appoint a guardian on a person’s behalf. ”
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    • “ To be effective an appointment of enduring guardian must be in the form prescribed by Schedule 1 of the Guardianship Regulation 2016 and must be executed in accordance with the provisions of the Act: s 6C Guardianship Act 1987. An appointment under the Act only has effect when a person needs a ... ”
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    • “ Any person over the age of 18 who has capacity can appoint a guardian by an instrument in writing under the Act. The Guardianship Act uses the term ‘appointor’ for the person making the appointment. This is defined in s 3 of the Act as the person who has appointed an enduring guardian under Part 2 ... ”
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    • “ Section 5 of the Guardianship Act 1987 defines the term ‘appointee’ as a person appointed as an enduring guardian under Part 2 of the Act. The term ‘guardian’ is also used, although that technically includes a person who is appointed by an order of the tribunal or court under Part 3 of the Act. ”
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    • “ The appointor must have capacity to validly appoint a guardian. Although the appointer’s treating doctors and perhaps even expert medical practitioners can, and often should, be consulted, the question of capacity is not strictly a medical question, it is a matter about which the lawyer witnessing ... ”
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    • “ The Act applies to natural persons, not corporations. ”
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    • “ See Witnesses below. Note that s 21 Interpretation Act 1987 defines ‘sign’ to include making a mark. ”
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    • “ Part 3A of the Guardianship Act 1987 provides for the tribunal to make financial management orders for persons who cannot manage their own financial affairs. This is separate and distinct from the ability of a person to appoint an enduring guardian for themselves, or from the tribunal’s power to do ... ”
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    • “ The functions of a guardian are set out in s 6E Guardianship Act 1987 and also in the prescribed form. These are: deciding the place (such as a specific nursing home, or the appointor’s own home) in which the appointor is to live, ”
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    • “ Section 4 of the Guardianship Act sets out the following general principles: (4)It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: ”
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    • “ Age requirement for a guardian A guardian must be over the age of 18 years: s 6B. ”
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    • “ An instrument validly appointing a guardian in another state of Australia, certified by an Australian legal practitioner, has effect in NSW, but only to the extent that any functions it confers can also be conferred under the NSW Act: s 6O Guardianship Act 1987. A guardian appointed under the law ... ”
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    • “ Two or more guardians may be appointed, either jointly, severally, or jointly and severally: s 6D Guardianship Act 1987. If guardians are appointed to act jointly, then all guardians must act together. ”
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    • “ Guardianship Act 1987 Guardianship Regulations 2016 ”
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    • “ A McKenzie Friend is someone who assists an unrepresented person in court. They can sometimes be a lawyer, but usually not – and they are not intended to be a substitute for a lawyer. A McKenzie Friend, even if they do happen to be a lawyer, may not address the court; they can take notes, organise ... ”
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    • “ Part 5 of the Guardianship Act 1987 provides for consents in relation to medical and dental treatment. Section 33A sets out the hierarchy of the persons responsible to give consent for a person to receive treatment. At the top of that hierarchy is a guardian, provided that the instrument or order ... ”
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    • “ A duly appointed guardian, including a substitute guardian, can only resign if the appointor has capacity and must do so by instrument in writing, executed in accordance with the same requirements as apply to the appointment, that is signed in the presence of an eligible witness. See Witnesses ... ”
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    • “ The tribunal may review the appointment of a guardian. It may suspend the appointment while that review is occurring. Upon review the tribunal may revoke or confirm the appointment, even where the instrument has not been correctly executed. Further, the tribunal may treat the review as an ... ”
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    • “ By the appointer A person who has appointed an enduring guardian for themselves may revoke it in writing, but only subject to the same execution requirements which apply to appointments, that is certification by an eligible witness and only if they have capacity. See Witnesses below. ”
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    • “ Any guardianship order made by the tribunal or the Supreme Court under Part 3 of the Act has the effect of suspending any appointment of enduring guardian under Part 2 of the Act for the duration of the order. ”
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    • “ The Guardianship Division of the NSW Civil and Administrative Tribunal has jurisdiction, with the Supreme Court, over guardianship matters under the Guardianship Act 1987. The tribunal may review the appointment of a guardian. See Review above. ”
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    • “ Who can be a witness? An Appointment of Enduring Guardian can only be witnessed by an ‘eligible witness’ as defined in s 5 Guardianship Act. This includes a lawyer. ”
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    • “ Granting someone the power to act as an attorney means that they step into the shoes of the grantor (principal) and can do on behalf of the principal anything that the principal can legally do, provided that only they act bona fide in the principal’s interests. It is common for a person to want or ... ”
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    • “ Section 7(2) of the Act states that the Act does not affect powers of attorney created before 2004 and the provisions of Part 3 of the Conveyancing Act 1919 continue to apply to powers created prior to 2004. The Act does not affect the operation of common law, equity, or Part 3 of the Conveyancing ... ”
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    • “ To create a prescribed power of attorney under the Act the forms prescribed by Schedule 2 of the Regulations – or another document to the same effect – must nominate an attorney, or attorneys, and be signed by the principal, who must have capacity. For a General Power of Attorney (Form 1) the ... ”
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    • “ The attorney is any person or persons to whom the power is given. There can be more than one and they can act jointly or severally, depending which is specified in the document. A power of attorney is a potent document – it potentially allows an attorney to buy and sell property on the principal’s ... ”
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    • “ The principal must have capacity to validly grant a power of attorney. Although the appointer’s treating doctors and perhaps even expert medical practitioners can, and often should, be consulted, the question of capacity is not strictly a medical question, it is a matter about which the lawyer ... ”
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    • “ The Act applies to natural persons, not corporations. A corporation may expressly or impliedly authorise an agent to enter into a contract on its behalf and the corporation has all the powers of a legal person, such as the power to grant a power of attorney recognised by the common law, but not ... ”
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    • “ Of principal The death of the principal immediately revokes the Power of Attorney and it cannot be used. This is not well understood and it is surprising how often clients who are also the nominated executor of a will, for example for their parent, think they can use a power of attorney to pay ... ”
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    • “ An attorney cannot appoint a substitute, sub-attorney or delegate, unless the instrument creating the power expressly provides for the attorney to do so: s 45 Powers of Attorney Act. A substitute attorney appointed by the principal may act during a vacancy of the specified attorney or a vacancy of ... ”
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    • “ There is no prescribed wording for, nor restriction upon, the directions than may be given in a Power of Attorney document, with the exception of the choices to be made regarding the powers set out at ss 11, 12 and 13 of the Powers of Attorney Act 2003, the wording for which appears in the ... ”
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    • “ Although most company constitutions permit the appointment of an alternate director, it is very unusual that they would permit the appointment of an attorney by a director to perform the director’s duties. A general power of attorney by a director, that is an appointment under the Act, does not ... ”
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    • “ This is as distinct from a general power of attorney. It is a prescribed power of attorney in, or to the effect of, Form 2 in Schedule 2 to the Powers of Attorney Regulation 2016 (as opposed to Form 1). An enduring power of attorney continues to have effect even if the principal loses mental ... ”
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    • “ See Witnesses below. Note that s 21 Interpretation Act 1987 defines ‘sign’ to include making a mark. ”
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    • “ The executor or administrator of an estate cannot delegate the functions of their office and therefore cannot appoint an attorney. ”
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    • “ A general power of attorney that is in, or to the effect of, Form 1 specified in Schedule 2 of the Regulations creates a prescribed power of attorney for the purpose of the Act: s 8 Powers of Attorney Act. A general power of attorney is the simplest type of power, but it ceases to be enforceable if ... ”
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    • “ Essentially this term relates to the situation where a person cannot communicate in relation to their property or their affairs. See s 4 of the Act as to when a person is incommunicate and s 42 of the Act. This may because they have a physical and or mental disability that precludes them from ... ”
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    • “ Of principal As a general rule, the appointment of an attorney by an insolvent principal will be ineffective, as the insolvent person has lost the legal ability to control their affairs. Equally, a power of attorney given by a principal who subsequently becomes insolvent will cease to be effective. ”
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    • “ An interstate power of attorney is valid in NSW if it is valid under the laws of the state or territory in which it was made, but it does not operate to confer power on an attorney in NSW which cannot be conferred on an attorney under NSW law: s 25 Powers of Attorney Act. It is possible to rely in ... ”
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    • “ A power of attorney may be expressed to be irrevocable: s 15 Powers of Attorney Act. There is no provision in the prescribed form to make an appointment irrevocable and it is not possible to do so by simply completing and executing the form. The critical factor for an irrevocable power of attorney ... ”
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    • “ If attorneys are appointed to act jointly then all the attorneys must sign documents or act together and if one attorney vacates office – as defined in s 5 of the Act – then the power of attorney is terminated, unless the document specifies otherwise and at least one attorney remains in office: s 46 ”
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    • “ Conveyancing Act 1919 Powers of Attorney Act 2003 ”
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    • “ There is no prescribed wording for, nor restriction upon, the limitations that may be placed in a power of attorney document. See Prescribed power of attorney below. ”
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    • “ A liquidator may appoint an attorney to act on behalf of the liquidator in the administration of the company: Australian Guarantee Corporation Ltd v Registrar of Titles (1992) 7 ACSR 577. ”
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    • “ A power of attorney is not terminated by reason of the principal becoming subject to management under the NSW Trustee and Guardian Act 2009, a ‘managed estate’, merely suspended: s 50(1) of the Powers of Attorney Act 2003. However, that position is subject to the express terms of the document ... ”
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    • “ A power of attorney only authorises the attorney to act on financial matters, not medical decisions. An enduring guardian can be appointed to make decisions relating to medical treatment, lifestyle and other personal decisions. See Appointments of enduring guardian above. ”
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    • “ It is possible to rely in NSW on an ordinary power of attorney made overseas if is dated, gives the attorney the power to act for the principal, is signed by the principal, is witnessed by an adult person and is in English or translated into English by a qualified translator. A NSW power of ... ”
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    • “ Under the Powers of Attorney Act 2003 a prescribed power of attorney confers on the attorney the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do: s 9. A prescribed power of attorney has effect subject to compliance with any conditions ... ”
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    • “ The Act defines the person giving the power of attorney as the ‘principal’; terminology which evokes the agency relationship that has always underpinned the law in respect of powers of attorney: s 3 Definitions. ”
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    • “ It is necessary to register the power of attorney at NSW Land Registry Services if it is to be used for a conveyance or other deed affecting land, other than a lease for a term of less than three years. This is done by lodging the power of attorney for registration and paying the current ... ”
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    • “ A power of attorney can be reviewed by the Guardianship Division of the NSW Civil and Administrative Tribunal or by the Supreme Court: s 26 Powers of Attorney Act 2003. The principal, an attorney, a guardian or any other ‘interested person’ with genuine concern for the welfare of the principal may ... ”
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    • “ A principal may revoke an enduring power of attorney at any time, as long as they have the capacity to do so. There is no prescribed form of revocation of power of attorney, but it must be served on the attorney. There is no obligation to register the revocation however if the power of attorney ... ”
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    • “ A prescribed power of attorney does not confer authority to act as trustee: s 10 Powers of Attorney Act 2003. ”
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    • “ Section 5 of the Act defines when there is a vacancy in the office of the attorney. This includes if the appointment is revoked, if the attorney renounces, dies or becomes bankrupt or ceases to have the capacity to continue to act as an attorney. The effect of a vacancy is that the power of ... ”
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    • “ Who can be a witness? The Act does not specify any requirements as to who can witness the execution by the principal of a general power of attorney. Accordingly, any person can be a witness, although common sense, the potential need to be able to prove the execution if necessary and the avoidance ... ”
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    • “ The creation and construction of wills in NSW are covered by the provisions of the Succession Act 2006. Formal requirements are prescribed for a will to be valid, namely that it must be in writing, signed by a testator who has capacity and also signed by at least two witnesses, both of whom must ... ”
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    • “ Administration is defined in s 55 Succession Act 2006. Both an executor, by a grant of probate, and an administrator, pursuant to letters of administration, have power to administer an estate, which means getting the assets in, paying the debts and distributing the estate according to the will or ... ”
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    • “ An administrator is defined in s 3 of the Probate and Administration Act 1898 as …the NSW Trustee and any other person to whom administration as defined under the acts has been granted. ”
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    • “ Alterations to a will are permitted by s 14 Succession Act 2006. By their very nature, alterations are presumed to have happened after execution. Alterations are only effective if they are executed in the same way that a will is required to be executed under s 6 Succession Act 2006. The witnesses ... ”
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    • “ Age qualification for beneficiaries ”
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    • “ An executor has a common law right to possession of the body of the deceased. An administrator does not have the same right. This is consistent with the executor’s burden of burying the deceased, which an administrator does not have. As a practical matter, the distinction probably developed because ... ”
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    • “ If a will is rational on its face and is proved to have been executed and attested in the manner prescribed by law, it is presumed in the absence of evidence to the contrary to have been made by a person of competent understanding: Timbury v Coffee [1941] HCA 22. The leading case on whether a ... ”
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    • “ See Beneficiaries above. ”
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    • “ Part 2.3 of the Succession Act 2006 deals with general rules about construction of wills and also the construction of particular provisions in wills. These all apply provided there is no contrary intention expressed in the will. In proceedings to construe a will evidence, including evidence of the ... ”
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    • “ People are free to enter into contracts to leave property by will. See the precedent Contract to Make Mutual Wills in the Wills matter plan. The deed should be specific as to the reasons for the agreement. Like any other contract, the parties will be held to their agreement, unless there are ... ”
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    • “ The Supreme Court has the power on the application of any person, to make, or to alter or revoke, a will on behalf of persons lacking testamentary capacity, including a minor: s 18 Succession Act 2006. Such wills are often known as statutory wills. See Fenwick, Re; Application of J R Fenwick & Re ... ”
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    • “ Section 8 of the Succession Act 2006 provides that the court may dispense with the usual requirements for the making of a will, altering a will, or revoking a will, if the court is satisfied that the document purports to state the testamentary intentions of the deceased and that the deceased ... ”
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    • “ Disposition of land A general disposition of land in a will includes leasehold land, whether or not the testator also owns freehold land, unless a contrary intention appears in the will: s 36 Succession Act 2006. The provisions of any lease agreement may override this provision. ”
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    • “ If the testator, having made a will while married, then divorces or has the marriage annulled, any appointment of the former spouse as an executor in the will is revoked, unless a contrary intention appears in the will: s 13 Succession Act 2006. Any beneficial gift to the former spouse is also ... ”
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    • “ It is permissible to have more than one will. This may be the case where the testator has assets in two or more different jurisdictions, typically Australia and another country. In fact, if the assets are substantial, or consist of real property, then a will in each jurisdiction will be required; ... ”
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    • “ Section 6 of the Succession Act 2006 provides for how a will is to be executed, namely that it must be in writing, signed by a testator who has capacity and also signed by at least two witnesses, both of whom must actually be present and see the testator sign. See Witnesses below. Note that s 21 ... ”
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    • “ Appointment of executor There is no restriction as to whom a testator may appoint as their executor. It is however important that the testator carefully considers the choice and only appoints someone that they trust and who can do the job properly. ”
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    • “ In proceedings to construe a will evidence, including evidence of the testator’s intention, is admissible to assist in the interpretation of the language used in the will, if the language makes the will or any part of the will meaningless, ambiguous on the face of the will, or ambiguous in the ... ”
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    • “ See International wills below. ”
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    • “ The Supreme Court of NSW considered a homemade will in Jones v Robinson & Ors [2019] NSWSC 932 and particularly the question of its appropriate interpretation where ambiguity existed. The Court particularly affirmed the ‘well accepted’ principles from Justice Isaacs in Fell v Fell (1922) 31 CLR 268 ... ”
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    • “ A will is revoked by marriage, unless it is made in contemplation of a particular marriage: s 12 Succession Act 2006. The question then arises, and sometimes needs to be judicially answered, as to whether or not the will was in fact made in contemplation of marriage. See for example Tolson v Hender ... ”
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    • “ Section 8 Succession Act 2006 provides that the court may dispense with the usual requirements for the making of a will, altering a will, or revoking a will, if the court is satisfied that the document purports to state the testamentary intentions of the deceased, and that the deceased intended for ... ”
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    • “ Howe v Fischer [2014] NSWCA 286 was a successful appeal from Fischer v Howe [2013] NSWSC 462, in which a solicitor was found negligent for not, inter alia, having ensured the elderly will maker executed an informal will pending finalisation of the execution of her formal will. Damages were awarded ... ”
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    • “ International wills are recognised under Chapter 2 Part 2.4A of the Succession Act 2006. A will made in a foreign country is valid in NSW if it is executed in accordance with the requirements of the law of that other country. Wills made aboard ships and aircraft are also valid if they conform with ... ”
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    • “ Succession Act 2006 Probate and Administration Act 1898 ”
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    • “ A ‘living will’ is not a term recognised by Australian law. In NSW the equivalent document is called an Appointment of Enduring Guardian, which allows a person to appoint someone else to make medical and lifestyle decisions for them if they become incapable. ”
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    • “ A will is not valid unless it is in writing and duly witnessed. See Witnesses below and s 6 Succession Act 2006. However, these provisions are overridden if a will is made pursuant to s 18 Succession Act 2006, which provides that a will can be made for a person without testamentary capacity at the ... ”
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    • “ A will is revoked by marriage, unless it is made in contemplation of marriage: s 12 Succession Act 2006. See Revocation below. ”
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    • “ Pursuant to s 5 Succession Act 2006 a will made by a minor, that is a person under 18 years of age, is not valid. However, there are several exceptions to this rule, namely: A minor may make a will in contemplation of marriage, but the will has no effect if the marriage does not occur: s 5(2); ”
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    • “ A court may authorise a minor to make a will, either on the application of the minor or on the application of someone on behalf of the minor, as long as the court is satisfied that the minor understands the will’s nature and effect, that the will accurately reflects the minor’s intentions and that ... ”
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    • “ It is possible to have multiple wills in multiple jurisdictions. An overseas will can be valid and effective to deal with the testator’s assets in that other jurisdiction at the same time as a NSW will is valid and effective to deal with the testator’s assets in NSW. Each will deals with the ... ”
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    • “ What makes wills ‘mutual’, rather than merely ‘reciprocal’, is the inclusion of a term in the agreement that a will shall not be revoked. In Birmingham v Renfrew (1937) 57 CLR 666 a husband and wife made such an agreement in circumstances where she had inherited money from an uncle and wanted it to ... ”
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    • “ Badenach v Calvert [2016] HCA 18: In the circumstances of this case the High Court held that the solicitor did not owe a duty of care to the beneficiary in the will. ”
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    • “ A testator may be bound to honour a promise to make someone a beneficiary in their will, or to leave certain property to a certain beneficiary, if the promisee has relied on that promise. See Delaforce v Simpson-Cook [2010] NSWCA 84 and Contracts to make wills above. ”
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    • “ Any property personally owned by the testator in NSW can be disposed of in a will made in NSW. That extends to property to which the testator’s legal personal representative – executor or administrator – becomes entitled in the capacity of legal personal representative, after the date of the ... ”
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    • “ Section 27 of the Succession Act 2006 provides the court may make an order to rectify a will if the court is satisfied that the testator’s intentions would not be carried out either due to a clerical error, or because the will does not give effect to the testator’ instructions. Applications for an ... ”
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    • “ Sections 11-13 of the Succession Act 2006 deal with revocation of a will. A will is revoked by: ”
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    • “ See Homemade wills, above. ”
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    • “ See also Capacity and Negligence – Solicitor’s duty of care to intended and disappointed beneficiaries above, and Witnesses below. As executor ”
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    • “ See Court made wills above. ”
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    • “ Most wills are drafted to require that a beneficiary must survive the testator by 30 days. There are several reasons for this. The main one is that s 35 Succession Act 2006 states that beneficiaries to whom a disposition of property is made in a will must survive the testator by 30 days, otherwise ... ”
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    • “ Are superannuation proceeds dealt with under a will? ”
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    • “ Where a will is executed under apparently suspicious circumstances the onus of proving that there are not suspicious circumstances is borne by the person propounding the will. Probate will not be granted unless the propounder allays those suspicions. Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197 ... ”
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    • “ See also Wills – Capacity above. See also: Bull v Fulton [1942] HCA 13; In the Matter of the Will and Estate of Joyce Helen Greer, deceased [2019] VSC 592; Croft v Sanders [2019] NSWCA 303; Drivas v Jakopovic [2019] NSWSC 218. ”
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    • “ The term ‘testator’ is not defined in either the Succession Act 2006 or the Probate and Administration Act 1898. The Succession Act does however use the term consistently to describe the person making a will and it is the usual and preferred term in the literature and the cases on wills and probate. ”
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    • “ This is the expression, and the name of the Act, which preceded the Family Provision Act 1982, which in turn was superseded by the family provision section of the Succession Act 2006: Chapter 3. It refers to the obligation the modern law places on testators to provide for their family out of their ... ”
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    • “ Section 54 of the Succession Act 2006 lists the people who are entitled to see the will after the testator has died. These are: any person named or referred to in the will, whether as a beneficiary or not, ”
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    • “ Attending witnesses for execution, revocation, amendments Section 6 of the Succession Act 2006 provides that there must be two or more witnesses to a will and they must both be present when the testator signs the will, then they must both sign the will attesting to the fact that they saw the ... ”
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    • “ Duty to keep accounts An executor or administrator has a duty to keep records, or accounts, of how the estate is administered and to make the accounts available to the beneficiaries. For most estates it is not necessary for the accounts to be filed at the court, or for them to be approved or ... ”
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    • “ The term ‘ademption’ refers to the situation where a specific gift to a named beneficiary in a will is defeated – adeemed – because the property which is the subject of the gift no longer exists. This might apply where a testator makes a specific gift of a property to a beneficiary, but then after ... ”
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    • “ Administration is defined in s 55 of the Succession Act 2006. Both an executor (probate) and an administrator (letters of administration) administer an estate, which means getting the assets in, paying the debts and distributing the estate according to the will or the rules of intestacy. Following ... ”
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    • “ This is a surety equal to the value of the estate which an administrator is required to lodge upon letters of administration being granted. See Application for a grant of probate or letters of administration below. ”
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    • “ An administrator is defined in s 3 of the Probate and Administration Act 1898, which is the same definition adopted by s 3 of the Succession Act 2006: "Administrator" includes the NSW Trustee and any other person to whom administration as hereinafter defined is granted. ”
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    • “ See Commission below, which applies to executors and administrators. ”
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    • “ An administrator is obliged to disclose to the court all assets and liabilities of the deceased. This is done by way of the inventory of assets and liabilities which is annexed to the affidavit in support of the application for grant of either probate or letters of administration: s 81A Probate and ... ”
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    • “ Any need to apply A grant of either probate where there is a valid will, or letters of administration where there is no will or no valid will, is not always required. There is no legislative requirement to apply for a grant in every case. ”
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    • “ An application may be made to the Supreme Court to revoke a grant of probate, although there is no specific provision in the Probate and Administration Act to that effect. In O'Brien v McCormick [2005] NSWSC 619 the court noted: ”
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    • “ Where a deceased leaves a will and the rules of intestacy do not apply, but the will is invalid (for example wrongly executed), irregular (a copy or a video), or where the named executor is unavailable having become incapable, or simply being unwilling, and where no substitute is appointed, then an ... ”
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    • “ Real Property Notice of death ”
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    • “ Beneficiary in possession of estate property It is the duty of the executor or administrator to get in the estate, including any property held by beneficiaries. If the beneficiary wants to retain the property it can be transferred to them in specie, as part of their entitlement under the will, but ... ”
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    • “ Claims by a beneficiary A beneficiary who believes there is a problem with the will, such as a contention that the deceased did not have capacity when the will was made, should be advised by the estate solicitor to seek independent advice. ”
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    • “ See – Death – Presumption of Death, below. ”
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    • “ A bequest is a gift or legacy under a will. See Gifts and bequests below. ”
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    • “ It is quite common for a will to include some directions as to how the testator wishes their remains to be disposed of, or even their detailed wishes for the conduct of a funeral service. Such statements are non-binding. At common law a direction in a will about the funeral, burial or cremation is ... ”
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    • “ Challenges to a will on the grounds that the executor lacked capacity are rarely successful. The authoritative case on capacity is Banks v Goodfellow (1870) LR 5 QB 549, which stated: ”
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    • “ Section 144 of the Probate and Administration Act 1898 provides that any person may lodge in the registry of the Supreme Court a caveat against any application for probate or administration, at any time before probate or administration is granted. Such a caveat might be lodged if someone intended ... ”
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    • “ A codicil is a document that amends, rather than replaces, a previously executed will. The will and codicil will need to be read together to determine if the testator appointed an executor, and if so who the executors and any substitute executors are, and what the terms of the will are. If the ... ”
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    • “ The Supreme Court of NSW website states the following in relation to commission: An executor or administrator is generally entitled to apply for commission to compensate them for the time and effort (or "pains and trouble") involved in administering an estate. An executor who receives a legacy ... ”
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    • “ An interested person can oppose an application for a grant of probate or letters of administration by seeking to impugn the will which is the subject of the application. There are five ‘standard’ grounds for challenging a will: ”
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    • “ Part 2.3 of the Succession Act 2006 deals with the construction of wills, including wills made under foreign law and international wills. The Supreme Court may be requested to rule on the construction of a will and, when doing so, may admit extrinsic evidence: s 32 Succession Act 2006. ”
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    • “ Ability of executor to intermeddle In some circumstances it may be advantageous for the estate if a contract is entered into before the formal grant of representation is obtained. An executor may elect to do so, which would constitute ‘intermeddling’ with estate assets and is perfectly ... ”
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    • “ The Supreme Court has jurisdiction, both by virtue of the legislation and as part of its inherent jurisdiction, over wills and estates. For small estates, the Local Court has limited power to act as a ‘district agent’ for the registrar of the Supreme Court. See ss 98-106 Probate and Administration ... ”
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    • “ See below under Family Provision. ”
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    • “ Causes of action survive death The general rule is that death does not affect the legal rights and obligations of the deceased, see s 2(1) Law Reform (Miscellaneous Provisions) Act 1944, which extends to all causes of action except defamation, some matrimonial causes and claims under the Property ... ”
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    • “ If one executor dies before a grant is made then, unless the will says otherwise, the surviving executor(s) can and should proceed. An executor, once appointed as legal personal representative, will undertake executorial duties in the first instance and then, if the will creates a trust, will be a ... ”
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    • “ Where the testator has made no provision in the will for an alternate or substitute executor and the executor named in the will dies before a grant of probate is obtained, the position is the same as if no executor had been appointed. A beneficiary can then apply for a grant of letters of ... ”
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    • “ An executor may delegate administrative functions relating to the administration of an estate but cannot delegate executorial duties. The executor may appoint a solicitor to represent the estate and apply for a grant of representation in the name of the executor and may appoint accountants to ... ”
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    • “ See Subpoenas, notices to produce and disclosure below. ”
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    • “ Application for probate by executor(s) An executor named in a will is entitled as of right to a grant of probate. ”
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    • “ There are three main types of grant of representation: grant of probate (will); ”
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    • “ A hotchpot clause is used to take account of inter vivos gifts or loans, usually, to the deceased’s children, so that when combined with the gifts to those children under the will, they all end up with the same benefit. In Re Tennant Mortlock v Hawker [1942] HCA 3 Dixon J said: ”
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    • “ Clauses making bequests to charities often try to specify how the bequest is to be used. Most charities prefer a general bequest that allows them discretion as to how the gift is applied, according to their operational requirements. In practical terms, even with specificity in a clause, once such a ... ”
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    • “ The court can grant administration of an informal will. Section 8 Succession Act 2006 provides that the court may dispense with the usual requirements for the making of a will, altering a will, or revoking a will, if the court is satisfied that the document purports to state the testamentary ... ”
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    • “ Apart from the ability of any dissatisfied beneficiary or claimant upon an estate to lodge a caveat in the registry they also retain the right to seek an injunction from the Supreme Court to restrain the legal personal representative from dealing with estate property and particularly from selling ... ”
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    • “ Intermeddling means a named executor dealing with the estate’s assets before a formal grant is made. There is nothing inherently wrong with this. It is not provided for in legislation – it is a common law concept, long recognised. See also Contracts entered into or completed before probate or ... ”
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    • “ An intestate is a person who dies and either does not leave a will or leaves a will but does not dispose effectively by will of all or part of his or her property: s 102 Succession Act 2006. ”
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    • “ See – Executors, above. ”
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    • “ Although upon the death of a joint proprietor the proprietary interest is lost to the surviving joint tenant(s), together with the obligation to contribute to the mortgage, the estate may remain liable under any personal covenants of a mortgage. ”
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    • “ See also Assets – Joint ownership of assets above. Two or more co-owners of land may own as either joint tenants or as tenants in common: s 100 Real Property Act 1900. ”
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    • “ Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at [82] discusses the English Court of Appeal decision in Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033, stating: …a person involved in the preparation or execution of a will, or charged with responsibility as an executor for ... ”
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    • “ Succession Act 2006; Probate and Administration Act 1898; ”
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    • “ See Applications for a grant of probate or letters of administration above See also Administrator, Distribution and Grants above. ”
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    • “ A life estate is a proprietary interest in real property, capable of being registered on title. Such a right entitles the proprietor to lease the estate to a tenant and retain any such rent. A ‘right of occupancy’ or similar is a conditional personal right, not capable of being registered and ... ”
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    • “ A life tenancy, or life estate, is a proprietary interest in real property, capable of being registered on title. In the context of a trust creating a life tenancy, the party who holds the property is known as the trustee and the beneficiary is known as the life tenant. In addition to these two ... ”
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    • “ One of the duties of an executor or administrator of an estate is to manage and, if possible, compromise any claims against the estate. That can be an onerous duty, involving a difficult balancing exercise between the merits and likelihood of success of the claim on the one hand and the necessity ... ”
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    • “ It is possible – and not entirely uncommon – to obtain a grant for administration based only upon a copy of a missing will: see In the Will of Valerie Eve Robson (deceased) [2020] QSC 52. See also Williamson v Pay [2020] QSC 66. In this regard the NSW Supreme Court’s website states: ”
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    • “ Section 92 Probate and Administration Act 1898 provides that an executor or administrator of an estate is protected from personal liability for claims by beneficiaries or creditors of the estate if they distribute more than six months after the date of death and more than 30 days after giving the ... ”
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    • “ See Assets above. ”
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    • “ Section 27 of the Succession Act 2006 provides the court may make an order to rectify a will if the court is satisfied that the testator’s intentions would not be carried out due to either a clerical error or that the will does not give effect to the testator’ instructions. Applications for an ... ”
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    • “ There is no compulsion upon someone to accept the role as executor. The named executor, or one of multiple named executors, may renounce their office before any application for a grant is made. If however the executor has intermeddled with the estate then they may lose their right to renounce. See ... ”
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    • “ An application may be made by any person interested in the estate, or by the NSW Trustee or a trustee company, or by a creditor of the estate, to have someone other than the named executor appointed, if the executor has neglected to apply for probate: s 75 Probate and Administration Act 1898. This ... ”
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    • “ An executor cannot resign once probate has been granted but may apply to the court for the grant to be revoked: s 66 Probate and Administration Act 1898. If the executor has intermeddled with the estate removal may not be permitted. ”
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    • “ See Application to revoke a grant of probate or letters of administration above. ”
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    • “ A small estate is one with assets not exceeding $15,000, or such other amount as is prescribed. In such an estate application for a grant of probate may be made to the registrar of the Supreme Court in the normal way, or to the registrar of a Local Court, which acts as district agent for the ... ”
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    • “ The considerations regarding disclosure of documents and information in contested probate proceedings are comprehensively discussed in Re Estates Brooker-Pain and Soulos [2019] NSWSC 671, where the court highlighted Practice Note SC Eq 11 and strongly indicated a preference for dealing with the ... ”
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    • “ The starting point for making wills is the idea of freedom of testamentary intention; that is the idea that a person should be able to leave their estate to whomever they choose – and to exclude as a beneficiary whomever they choose. In Banks v Goodfellow (1870) LR 5 QB 549, at 564, Cockburn CJ ... ”
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    • “ Pursuant to s 59(1)(c) an order can only be made if: at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased ... ”
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    • “ Claims by adult children against an estate are perhaps the most common type of claim under Chapter 3. In Megerditchian v Khatchadourian [2019] NSWSC 1870 the court said at [177]: ”
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    • “ In Vigolo v Bostin [2005] HCA 11 the High Court considered, under the Western Australian legislation, the effect of a purported promise by the deceased that his son, from whom he became estranged, would inherit the deceased’s farm on his death. The court did so in the context of the relevance of ... ”
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    • “ In Spata v Tumino [2018] NSWCA 17 the Court of Appeal dismissed an appeal by the adult stepson of the deceased who had failed at first instance on the basis that the court below did not accept that he was an eligible person in that he was not dependent upon the deceased. The court at first instance ... ”
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    • “ Evidence in family provision cases is by affidavit – see Supreme Court Practice note SC EQ 7. In Megerditchian v Khatchadourian [2019] NSWSC 1870 the court considered in some detail the requirement that the plaintiff file an affidavit at the time of filing their summons: ”
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    • “ It is not necessary for an application for a grant of probate or letters of administration to be made at or before the time an application for family provision is made. Section 58(1) of the Succession Act 2006 specifically provides that an application for a family provision order may be made ... ”
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    • “ Section 60(2) of the Succession Act 2006 sets out the matters that may be taken into account by the court in determining whether or not to make a family provision order. Section 60(2)(j) provides that the court may consider any evidence of the testamentary intentions of the deceased person, ... ”
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    • “ In Harris v Carter [2020] NSWSC 196 the thrust of the defendant’s submissions was that the relationship between the deceased and the plaintiff was nothing more than bare paternity, that is, there was a biological relationship only. The plaintiff was a thirteen year old son who had never had any ... ”
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    • “ Note: this is different from a de facto relationship. See De facto partner below. There are two categories of eligible persons which require that the claimant satisfy the court they were in a ‘close personal relationship’ with the deceased: ”
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    • “ The usual position that costs follow the cause is not necessarily the case in family provision litigation. Sometimes a claimant will be unsuccessful but will have their costs paid out of the estate. The plaintiff may be required to pay the estate’s costs where the claim has no merit, or the estate ... ”
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    • “ The effect of a Crisp order is well described by Hallen J in Dimic v Djekovic [2014] NSWSC 1502 at 172 as follows: What is described in the cases as a “Crisp order” is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Co Ltd (Supreme Court (NSW), Holland J, 18 December 1979, ... ”
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    • “ The effect of a Crisp order is well described by Hallen J in Dimic v Djekovic [2014] NSWSC 1502 at 172 as follows: What is described in the cases as a “Crisp order” is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Co Ltd (Supreme Court (NSW), Holland J, 18 December 1979, ... ”
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    • “ Note: this is different from a ‘close personal relationship’ – see Close personal relationship above. A category of eligible persons includes de facto partners – s 57(1)(b). ”
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    • “ For the purposes of s 57(1)(b) Succession Act 2006 there is no difference between a same sex de facto relationship and any other de facto relationship, except in the practical sense that same sex relationships are sometimes kept secret and therefore evidence of them may be more difficult to adduce. ... ”
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    • “ See also Adult stepchild above. Section 57(1)(e) requires a claimant to show not only that they are a grandchild of the deceased or were a member of the deceased’s household at any time, but also that they were wholly or partly dependent on the deceased. ”
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    • “ In Megerditchian v Khatchadourian [2019] NSWSC 1870 at [145] the court noted that: It is well established that, in some circumstances, where a plaintiff in a family provision application fails to make full and proper disclosure of his or her financial position, the Court will refuse the application. ”
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    • “ For an order to be made for provision the court must be satisfied that the applicant is an ‘eligible person’ in accordance with s 57(1) of the Succession Act 2006: (1)The following are "eligible persons" who may apply to the Court for a family provision order in respect of the estate of a deceased ... ”
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    • “ See also Adult children above. Towson v Francis [2017] NSWSC 1034 dealt with estrangement between an adult child and a deceased parent. His Honour Hallen J in that case referred to his own previous decision as follows: ”
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    • “ Section 58(2) of the Succession Act 2006 provides that: An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown. ”
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    • “ For certain categories of eligible persons under s 57 of the Succession Act 2006 the court must find that there are factors warranting the making of their application before an order can be made. These categories are s 57(1)(d), (e) and (f) – that is, all those apart from current or former ... ”
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    • “ Regarding the interplay between family provision claims and previous family law property orders, see for example Dark v Dark [2016] NSWSC 1223, which dealt with a claim by a widow who was separated from the deceased at the time of his death, where a financial agreement made under s 90C of the ... ”
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    • “ In Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113] in a passage approved by the Court of Appeal in Chapple v Wilcox [2014] NSWCA 392, Hallen J said: In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered: ”
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    • “ Pursuant to s 62 Succession Act 2006 it is possible for a plaintiff who seeks provision from an estate as an eligible person under Chapter 3 to make an application for interim provision, before – in fact while awaiting – the final hearing. Success in such applications is however very rare. Where ... ”
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    • “ Pursuant to s 59 the court can make family provision orders ‘in relation to the estate of a deceased person’, which includes intestate estates. Hallen J dealt with such an estate in Curnow v Curnow [2014] NSWSC 896. ”
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    • “ Chapter 3 Succession Act 2006 ”
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    • “ See also Adequate provision above. In Wayne Laurence Savage v Rebecca Ferguson [2014] NSWSC 703 Kunc J, having set out the provisions of ss 59 and 60 Succession Act 2006, went on to provide a detailed exposition of the matter which the court must consider – and the way they should be considered – ... ”
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    • “ Definition of notional estate Section 3 of the Succession Act 2006 provides the following definitions: ”
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    • “ Court to be satisfied before making family provision orders The court may only make orders for provision out of an estate if the court is satisfied that the claimant is an eligible person for whom inadequate provision has been made in the will, or on intestacy, AND there are factors warranting the ... ”
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    • “ Section 95 provides for a person to grant a release of their family provision rights, subject to court approval, as follows: (1)A release by a person of the person’s rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval ... ”
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    • “ It is often argued in family provision cases that significant weight should be given to the testator’s freedom to dispose of his or her estate as they choose. In fact, the effect of Chapter 3 of family provision legislation is that testators do not have such freedom; or, to be more specific, they ... ”
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    • “ Where the estate is sufficient to allow it, appropriate provision for the maintenance and advancement of a surviving spouse will generally be unencumbered accommodation – usually the residence shared with the deceased, or its equivalent – plus a fund to ensure they are cared for and may live in the ... ”
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