4 Matter Plans Included
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ALERTS - Nil
-
Full Commentary - Family Provision Claims (NSW) - Acting for the Estate
-
Reference materials
-
AI Prompts
An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Looking to the Future
-
Electronic Signing and Witnessing
-
101 Succession Answers for New South Wales
Including Appointments of Enduring Guardian, Powers of Attorney, Wills, Probate and Administration and Family Provision.
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
101 Subpoena Answers
-
101 Costs Answers
-
Further information
-
-
Overview and limitation periods
Legislative scheme Chapter 3 of the Succession Act 2006 (the Act) provides for family provision claims.
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
A. Getting the matter underway
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File cover sheet - Family provision claims - Acting for the estate
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To do list - Family provision claims - Acting for the estate
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First steps
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Client details and verifying identity
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Retainer instructions - Family provision claims - Acting for the estate
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Conflict of interest check
-
Initial letter to client with costs agreement
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Costs agreement - NSW
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Standard costs disclosure form for clients - Fees under $3000
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Time and costs estimates
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If required - Updating costs disclosure
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Letter to client updating costs disclosure
-
Charge securing costs
-
Guarantee securing costs
-
Costs disclosure before settlement in litigation matters
-
Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
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Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
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-
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Letter to plaintiff's solicitor in response to their initial letter
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The estate
The client will usually be the executor or administrator of an estate. Otherwise, the client might be the primary beneficiary under an intestacy or in a will where there is no executor, or a spouse who has taken by way of survivorship. In any event, the first task in acting for the estate is to ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Taking instructions on the claim
The scope of the matters the court may consider in a family provision claim and the scope of the evidence that might be required in support is potentially wide. By any measure the court’s discretionary power in determining these claims is a broad one. Instructions should therefore be detailed, but ...
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-
Notional estate
Where property that would otherwise have been part of the deceased’s estate and available to meet any family provision order has been transferred to a person, or into a trust, for less than full consideration – a relevant property transaction as defined in s 75 of the Succession Act 2006 – ...
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-
Eligible persons
A threshold issue when representing an estate facing a family provision claim is whether or not the claimant can establish eligibility under s 57 of the Succession Act 2006. The categories of eligible persons are:
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-
Adequate provision – The two-stage process
Once eligibility is established family provision claims involve a two-stage process as originally articulated by the majority of the High Court in Singer v Berghouse [1994] HCA 40:
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Briefing counsel
It is common and effective in family provision matters to brief counsel at an early stage. Unlike most litigation the claimant is required to provide detailed evidence in support of their claim when a summons is filed and served. In practice, many plaintiff’s representatives will serve at least an ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
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Brief to counsel - Family provision claim
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Example content - Brief to counsel - Family provision claim
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General deeds, agreements, execution clauses, and statutory declarations
-
Deeds and Agreements
-
Deeds
-
Deed for general use
-
Deed of guarantee
-
Deed of release
-
General deed of indemnity
-
Deed of assignment of agreement
-
Deed of gift
-
Library of standard clauses for deeds
-
Amendment
-
Confidentiality for defined information - All parties
-
Confidentiality for defined information - One party
-
Confidentiality for terms of deed - All parties
-
Confidentiality for terms of deed - One party
-
Costs
-
Counterparts
-
Dispute resolution
-
Events beyond control
-
Governing law and jurisdiction
-
Interpretation
-
No assignment
-
Notices
-
Severance
-
Waiver
-
Whole agreement
-
-
-
Agreements
-
Agreement for general use
-
Heads of agreement
-
Non-disclosure agreement - Formal
-
Non-disclosure agreement - Informal
-
Library of standard clauses for agreements
-
Amendment
-
Confidentiality for defined information - All parties
-
Confidentiality for defined information - One party
-
Confidentiality for terms of agreement - All parties
-
Confidentiality for terms of agreement - One party
-
Costs
-
Counterparts
-
Dispute resolution
-
Events beyond control
-
Governing law and jurisdiction
-
Interpretation
-
No assignment
-
Notices
-
Severance
-
Waiver
-
Whole agreement
-
-
-
Execution clauses
-
Library of execution clauses for agreements
-
Attorney
-
Authorised officer
-
Company
-
Company - Sole director
-
Individual
-
Individual - No witness
-
-
Library of execution clauses for deeds
-
Attorney
-
Authorised officer
-
Company
-
Company - Sole director
-
Individual
-
-
-
Statutory declarations
-
Commonwealth statutory declaration
-
Statutory declaration - blank - ACT
-
Statutory declaration - blank - NSW
-
Statutory declaration - blank - VIC
-
Statutory declaration - blank - QLD
-
Statutory declaration - blank - TAS
-
Statutory declaration - blank - SA
-
Statutory declaration - blank - WA
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Statutory declaration - blank - NT
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Standard annexure note for documents
-
-
Standard annexure note for documents
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-
-
B. Settling the matter
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Settling the matter
Negotiating with the claimant As soon as the estate is on notice of a claim attempts can be made to negotiate a resolution. It is usual for claimants seeking to negotiate a settlement to provide either a letter or a copy of their draft affidavit setting out the basis of their claim and either make ...
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-
Negotiating with the claimant
As soon as the estate is on notice of a claim attempts can be made to negotiate a resolution. It is usual for claimants seeking to negotiate a settlement to provide either a letter or a copy of their draft affidavit setting out the basis of their claim and either make an offer of settlement or ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Advising the client about the claim
It is important to give realistic advice to the client about what outcome they can expect and therefore what approach they are to take to negotiations and offers of settlement. Where the claimant is competing for provision with a spouse or partner of the deceased it is important to realise that, as ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Costs disclosure before settlement
See 101 Costs Answers for more information on costs disclosure generally. In litigation matters, the lawyer’s disclosure obligation extends to giving the client a reasonable estimate of the costs that will be payable if the matter is settled, including any costs of another party that are likely to ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
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Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
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Mechanics of settlement
Where no proceedings have commenced claims can be settled by a deed of family arrangement or a simple deed of settlement. Always consider the taxation implications, especially the possible capital gains tax consequences if the transaction is by other means than a deed of family arrangement. See ...
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Letter to beneficiary affected by settlement of claim
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Offer of compromise by defendant
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Calderbank offer by defendant
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Consent judgment or consent order
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Clause - Consent orders for provision made in the proceedings
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Deed of settlement of a family provision claim
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Letter reporting to defendant on settlement
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C. Going to court
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Letter to client enclosing Practice Note SC EQ 7
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Enclosure - Practice Note No. SC Eq 7 - Family Provision - Supreme Court of New South Wales
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Commencement
If settlement negotiations fail, or if time is about to expire, or if an approval is required the claimant will commence proceedings by filing a summons in the Supreme Court Equity Division, or the District Court Family Provision List, seeking provision pursuant to s 59 and s 60 of the ...
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Necessity for a grant
If the client is a named executor, a beneficiary under a will where there is no available executor, or there is no will and the client is the main person entitled to take under intestacy, they may not yet have applied for a grant of probate or administration when a claim is notified. This can ...
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Briefing counsel
It is common and effective in family provision matters to brief counsel at an early stage. Unlike most litigation the claimant is required to provide detailed evidence in support of their claim when a summons is filed and served. In practice, many plaintiff’s representatives will serve at least an ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
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Brief to counsel - Family provision claim
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Example content - Brief to counsel - Family provision claim
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Notice to eligible persons
Pursuant to both Practice Note SC EQ 07 and cl 1.4(1) under the heading Succession Act 2006 in Schedule J to the Supreme Court Rules 1970, the plaintiff must serve a notice on the administrator, with the summons, as to whom is or may be an eligible person and their address if ...
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Letter to eligible person
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Evidence
Procedure All evidence in family provision cases is by affidavit. Practice Note SC EQ 07 sets out the procedure for the filing of the parties’ evidence.
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Defendant's notice to eligible persons
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Affidavit of the administrator
The court will make an order at the first directions hearing for the administrator to serve an affidavit, and the information it must contain: paragraph 18 of Practice Note SC EQ 07. If there has not been a grant then best endeavours should be used to obtain the required ...
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If required - Tutors
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Client under an incapacity
Where the client is a person under a legal incapacity, whether because they are a minor or for some other reason, proceedings can only be defended on their behalf by a tutor: r 7.15(1) Uniform Civil Procedure Rules 2005. A tutor must file the following documents before they can take any step ...
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Consent to act as tutor
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First directions hearing
Practice Note SC EQ 07 applies. Each party not appearing in person must be represented by a legal practitioner familiar with the proceedings. Any practitioner appearing who does not have sufficient familiarity with the matter to answer the judge’s questions is taking a grave risk. It ...
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Draft short minutes of order - First directions hearing
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Appearance
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Letter to client after first directions hearing
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Mediation
Practice Note SC EQ 07 and Practice Note SC Gen 6 apply to mediations. Mediation will be court-annexed, unless the parties all consent to private mediation, or the court otherwise orders. Court-annexed mediation by a registrar means there is no cost to the parties. See ...
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Second directions hearing
If the matter has not settled at mediation a timetable is required for the preparation of the matter for final hearing and the parties need to attempt to agree on orders in advance. The timetable needs to address filing and service of any updating affidavits of a party or beneficiary and of any ...
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Draft short minutes of order - Second directions hearing
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Final directions hearing
The matter will generally be set down for a hearing at this stage but may be adjourned for further directions if the parties agree they require additional time to file evidence or to negotiate in the hope of settling. However, any party making a unilateral application for a further adjournment who ...
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Draft short minutes of order - Final directions hearing
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Clause - Affidavit of executor administrator of the estate
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Clause - Defendant's affidavit identifying claimant as beneficiary
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Clause - Defendant's affidavit as to administrator's costs and disbursements to completion of mediation
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Letter to client enclosing draft affidavits
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Letter to client enclosing affidavits for signing
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Clause - Affidavit of service of plaintiff’s application by administrator - Paragraph 9.2 PN SC EQ 7
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Discovery, subpoenas and notices to produce
Subpoenas and notices to produce are restricted. Paragraph 30 of Practice Note SC EQ 07 provides that leave is required before they can be served. There must be a legitimate forensic purpose. A plaintiff would generally not seek leave to issue subpoenas or notices to produce ...
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Subpoena to produce with subpoena notice and declaration
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Notice to produce to court
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Notice to produce for inspection
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The hearing
The directions made at the final directions hearing will provide for the matter to be prepared for hearing and must be strictly complied with. Any adjournment of the hearing due to non-compliance with directions will have severe costs consequences. The evidence at the hearing will be by affidavit. ...
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Letter to witness enclosing affidavit for signing
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Affidavit
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Clause - Defendant's final affidavit as to costs
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Clause - Generative AI disclosure
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Clause - Generative AI disclosure with annexure or exhibit
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Draft court book index
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Draft agreed chronology
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Outline of submissions - Defendant
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After the hearing
If a family provision order is made by consent or otherwise, the executor or 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:
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D. Finalising the matter
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Finalising the matter
The estate solicitor frequently has a lot of work to do after a family provision claim is determined, but that is likely to be under the scope of the presumably separate retainer to act on the administration of the estate. The claim file will often need to await the sale of assets and the ...
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Letter to client finalising the matter
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Example invoice incorporating notification of client's rights - NSW
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Closing the file
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File closing checklist
-
-
Comments and suggestions for By Lawyers
-
ALERTS - Nil
-
Full Commentary - Family Provision Claims (NSW) - Acting for the Plaintiff
-
Reference materials
-
AI Prompts
An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Looking to the Future
-
Electronic Signing and Witnessing
-
101 Succession Answers for New South Wales
Including Appointments of Enduring Guardian, Powers of Attorney, Wills, Probate and Administration and Family Provision.
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
101 Subpoena Answers
-
101 Costs Answers
-
Further information
-
-
Overview and limitation periods
Legislative scheme Chapter 3 of the Succession Act 2006 provides for family provision claims.
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
A. Getting the matter underway
-
File cover sheet - Family provision claims - Acting for the plaintiff
-
To do list - Family provision claims - Acting for the plaintiff
-
First steps
-
Client details and verifying identity
-
Retainer instructions - Family provision claims - Acting for the plaintiff
-
Conflict of interest check
-
Initial letter to client with costs agreement
-
Costs agreement - NSW
-
Scope of work - Wills and lifetime planning
-
Standard costs disclosure form for clients - Fees under $3000
-
Time and costs estimates
-
If required - Updating costs disclosure
-
Letter to client updating costs disclosure
-
Charge securing costs
-
Guarantee securing costs
-
Costs disclosure before settlement in litigation matters
-
Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
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Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
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-
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Letter to potential claimant
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Letter to client enclosing Practice Note SC EQ 7
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Enclosure - Practice Note No. SC Eq 7 - Family Provision - Supreme Court of New South Wales
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Initial letter to executor or administrator requesting copy of will
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Initial letter to solicitor for the estate requesting copy of will
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Initial letter to executor or administrator requesting details of estate and foreshadowing claim
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Initial letter to solicitor for the estate requesting details of estate and foreshadowing claim
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Initial letter to executor or administrator of intestate estate requesting details of estate and foreshadowing claim
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Initial letter to solicitor for estate of intestate estate requesting details of estate and foreshadowing claim
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Taking instructions on the claim
The scope of the matters the court may consider in a family provision claim and the scope of the evidence that might be required in support is potentially wide. By any measure the court’s discretionary power in determining these claims is a broad one. Family provision cases are also strictly ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Notional estate
Where property that would otherwise have been part of the deceased’s estate and available to meet any family provision order has been transferred to a person, or into a trust, for less than full consideration, the court can make a notional estate order to designate the property as part of the ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Eligible persons
A threshold issue on taking instructions, regardless of whether the deceased left a will or not, is to determine whether the client can establish eligibility under s 57 of the Succession Act 2006 to bring a claim. The categories of eligible persons are:
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Adequate provision – The two-stage process
Once eligibility is established, family provision claims involve a 2-stage process as originally articulated by the majority of the High Court in Singer v Berghouse [1994] HCA 40:
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Briefing counsel
It is common and effective in family provision matters, especially for plaintiffs, to brief counsel at an early stage. Unlike most litigation, the key task of preparing the client’s evidence, the substantive affidavit required by Practice Note SC EQ 07, must be done before proceedings are ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
General deeds, agreements, execution clauses, and statutory declarations
-
Deeds and Agreements
-
Deeds
-
Deed for general use
-
Deed of guarantee
-
Deed of release
-
General deed of indemnity
-
Deed of assignment of agreement
-
Deed of gift
-
Library of standard clauses for deeds
-
Amendment
-
Confidentiality for defined information - All parties
-
Confidentiality for defined information - One party
-
Confidentiality for terms of deed - All parties
-
Confidentiality for terms of deed - One party
-
Costs
-
Counterparts
-
Dispute resolution
-
Events beyond control
-
Governing law and jurisdiction
-
Interpretation
-
No assignment
-
Notices
-
Severance
-
Waiver
-
Whole agreement
-
-
-
Agreements
-
Agreement for general use
-
Heads of agreement
-
Non-disclosure agreement - Formal
-
Non-disclosure agreement - Informal
-
Library of standard clauses for agreements
-
Amendment
-
Confidentiality for defined information - All parties
-
Confidentiality for defined information - One party
-
Confidentiality for terms of agreement - All parties
-
Confidentiality for terms of agreement - One party
-
Costs
-
Counterparts
-
Dispute resolution
-
Events beyond control
-
Governing law and jurisdiction
-
Interpretation
-
No assignment
-
Notices
-
Severance
-
Waiver
-
Whole agreement
-
-
-
Execution clauses
-
Library of execution clauses for agreements
-
Attorney
-
Authorised officer
-
Company
-
Company - Sole director
-
Individual
-
Individual - No witness
-
-
Library of execution clauses for deeds
-
Attorney
-
Authorised officer
-
Company
-
Company - Sole director
-
Individual
-
-
-
Statutory declarations
-
Commonwealth statutory declaration
-
Statutory declaration - blank - ACT
-
Statutory declaration - blank - NSW
-
Statutory declaration - blank - VIC
-
Statutory declaration - blank - QLD
-
Statutory declaration - blank - TAS
-
Statutory declaration - blank - SA
-
Statutory declaration - blank - WA
-
Statutory declaration - blank - NT
-
Standard annexure note for documents
-
-
Standard annexure note for documents
-
-
-
B. Settling the matter
-
Settling the matter
Negotiating with the estate Even before proceedings are commenced attempts can be made to resolve the claim. There is a positive obligation on the executor or administrator to compromise any genuine claims against the estate. There is also a strong incentive for beneficiaries to agree to any ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Negotiating with the estate
Even before proceedings are commenced attempts can be made to resolve the claim. There is a positive obligation on the executor or administrator to compromise any genuine claims against the estate. There is also a strong incentive for beneficiaries to agree to any reasonable settlement proposed by ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Advising the client about the claim
It is important to give realistic advice to the claimant about what outcome they can expect and therefore what approach they are to take to negotiations and offers of settlement. Where the claimant is competing for provision with a spouse or partner they need to remember that, as a general rule, ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Costs disclosure before settlement
See 101 Costs Answers for more information on costs disclosure generally. In litigation matters, the lawyer’s disclosure obligation extends to giving the client a reasonable estimate of the costs that will be payable if the matter is settled. This estimate includes any costs of another party that ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
-
Offer of compromise by plaintiff
-
Calderbank offer by plaintiff
-
Deed of settlement of a family provision claim
-
Clause - Consent orders for provision made in the proceedings
-
Settlement checklist
-
Letter reporting to plaintiff on settlement
-
Letter to client enclosing settlement deed
-
Deed of family arrangement
-
Authority to settle and receive
-
Direction to pay and authority to receive
-
-
C. Going to court
-
Filing the claim
Proceedings are commenced by filing a summons in the Supreme Court Equity Division, or the District Court Family Provision List, seeking provision pursuant to s 59 and s 60 of the Succession Act 2006. The District Court has jurisdiction under s 134(1)(c) and (2) of the District Court ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
If required - Tutors
-
Consent to act as tutor
-
-
Necessity for a grant
Section 58 of the Succession Act 2006 provides that an application for a family provision order, including a notional estate order, may be made whether or not administration of the estate of the deceased person has been granted. If a grant has been made, the administrator is named as the ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Briefing counsel
It is common and effective in family provision matters, especially for plaintiffs, to brief counsel at an early stage. Unlike most litigation, the key task of preparing the client’s evidence, the substantive affidavit required by Practice Note SC EQ 07, must be done before proceedings are ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Brief to counsel - Family provision claim
-
Example content - Brief to counsel - Family provision claim
-
Summons
-
Clause - Summons for provision
-
Service of the summons
-
Letter to client after filing claim
-
Letter to defendant serving summons and other documents
-
Plaintiff's evidence
All evidence in family provision cases is by affidavit. The plaintiff must file a substantive affidavit at the time of filing the Summons. This affidavit is the plaintiff’s evidence in chief. The estate will file its affidavits and the plaintiff will have the opportunity to file further affidavit ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Plaintiff's affidavit used in family provision matters - Practice note no. SC Eq 7
-
General form
-
Example content - Plaintiff's notice of eligible persons
-
Affidavit
-
Clause - Plaintiff's affidavit as to costs and disbursements to completion of mediation
-
Clause - Generative AI disclosure
-
Clause - Generative AI disclosure with annexure or exhibit
-
Letter to client enclosing draft affidavit
-
Letter to client enclosing affidavit for signing
-
Letter serving summons on solicitor for the estate
-
Letter serving summons personally on executor OR administrator
-
Letter instructing process server
-
Affidavit of service
-
Expert evidence
Expert evidence in family provision claims is not very common. Like all other evidence, it is by affidavit and it must be relevant. If the plaintiff claims need based on a medical condition, there will be medical evidence filed, although see paragraph 38.6 of Practice ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
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Evidence of statements of the deceased
Section 60(2)(j) of the Succession Act 2006 provides that the court may consider any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. The most common form of statement relied on is a letter or affidavit from the ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Discovery, subpoenas and notices to produce
Discovery is not usually available in equity proceedings: Practice Note No. SC Eq 11 – Disclosure in the Equity Division. However, discovery may be obtained in family provision proceedings where necessary for the resolution of the real issues in the proceedings. This is usually done ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Subpoena to produce with subpoena notice and declaration
-
Notice to produce to court
-
Notice to produce for inspection
-
First directions hearing
Practice Note SC EQ 07 applies. Each party not appearing in person must be represented by a legal practitioner familiar with the proceedings. Any practitioner appearing who does not have sufficient familiarity with the matter to answer the judge’s questions is taking a grave risk. It ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Draft short minutes of order - First directions hearing
-
Draft consent orders - First directions hearing
-
Letter to client after first directions hearing
-
Letter to client enclosing estate affidavits
-
Letter to witness enclosing affidavit for signing
-
Negotiating with the estate
Even before proceedings are commenced attempts can be made to resolve the claim. There is a positive obligation on the executor or administrator to compromise any genuine claims against the estate. There is also a strong incentive for beneficiaries to agree to any reasonable settlement proposed by ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
-
Mediation
Practice Note SC EQ 07 and Practice Note SC Gen 6 apply to mediations. Mediation will be court-annexed unless the parties all consent to private mediation, or the court otherwise orders. Court-annexed mediation by a registrar means there is no cost to the parties. See ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
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Second directions hearing
If the matter has not settled at mediation, a timetable is required for the preparation of the matter for final hearing and the parties need to attempt to agree on orders in advance. The timetable needs to address filing and service of any updating affidavits of a party or beneficiary and of any ...
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Draft short minutes of order - Second directions hearing
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Final directions hearing
The matter will generally be set down for a hearing at this stage but may be adjourned for further directions if the parties agree they require additional time to file evidence or negotiate in the hope of settling. However, any party making a unilateral application for a further adjournment who has ...
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Draft short minutes of order - Final directions hearing
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If required - Updating costs disclosure
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Letter to client updating costs disclosure
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Letter to client updating costs disclosure
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Charge securing costs
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Charge securing costs
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Guarantee securing costs
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Guarantee securing costs
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Costs disclosure before settlement in litigation matters
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Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
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Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
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Costs disclosure before settlement in litigation matters
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Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
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Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
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Clause - Plaintiff's final affidavit as to costs
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The hearing
The directions made at the final directions hearing will provide for the matter to be prepared for hearing and must be strictly complied with. Any adjournment of the hearing due to non-compliance with directions will have severe costs consequences and, if it is the applicant’s fault, could result ...
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Subpoena to attend to give evidence
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Letter to witness serving subpoena to give evidence
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Draft court book index
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Outline of submissions - Plaintiff
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Draft agreed chronology
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After the hearing
If a family provision order is made, by consent or otherwise, the executor or 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:
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D. Finalising the matter
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Authority to settle and receive
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Direction to pay and authority to receive
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Letter to client enclosing settlement deed
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Letter to client finalising the matter
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Letter to client finalising the matter - Successful application
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Letter to client finalising the matter - No payment
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Example invoice incorporating notification of client's rights - NSW
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Closing the file
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File closing checklist
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Comments and suggestions for By Lawyers
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101 Succession Answers for New South Wales
Including Appointments of Enduring Guardian, Powers of Attorney, Wills, Probate and Administration and Family Provision.
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Enduring guardian
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Generally
An appointment of enduring guardian by instrument under the Guardianship Act 1987 allows a person, the appointor, to appoint another person, the guardian, to make medical and lifestyle decisions for them should they become incapable of doing so themselves. It is an entirely separate and distinct ...
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Application of the legislation
Part 2 of the Act 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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Appointment
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 of the Guardianship Act 1987. An appointment under the Act only has effect when a ...
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Appointor
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 ...
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Appointee
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 ...
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Capacity
The appointor must have capacity to appoint a guardian. Although the appointor’s treating doctors and perhaps even expert medical practitioners can, be consulted, the question of capacity is not strictly a medical question. It is a matter about which the lawyer witnessing and certifying the ...
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Corporations
The Act applies to natural persons, not corporations.
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Execution
See Witnesses below. Note that the definition of sign under s 21 of the Interpretation Act 1987 includes making a mark.
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Financial management
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 ...
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Functions of a guardian
The functions of a guardian are set out in s 6E of the Guardianship Act 1987 and also in the prescribed form. These are:
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General principles
Section 4 of the Guardianship Act sets out the following general principles:
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Guardians
Age requirement for a guardian A guardian must be over the age of 18 years: s 6B.
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Interstate and international guardians
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 of the Guardianship Act 1987. A guardian appointed ...
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Joint guardians
Two or more guardians may be appointed, jointly, severally, or jointly and severally: s 6D of the Guardianship Act 1987. If guardians are appointed to act jointly, all guardians must act together.
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Legislation
Guardianship Act 1987 Guardianship Regulation 2016
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McKenzie friends
A McKenzie friend is someone who assists an unrepresented person in court. They can sometimes be, but are not always, a lawyer.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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Medical and dental treatment
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 for giving consent for a person to receive treatment. At the top of that hierarchy is a guardian, provided that the ...
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Resignation
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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Review
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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Revocation
By the appointor 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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Suspension
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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Tribunal
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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Witnesses
Who can be a witness? An appointment of enduring guardian can only be witnessed by an eligible witness as defined in s 5 of the Guardianship Act 1987. This includes a lawyer.
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Estates
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Accounts
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 passed ...
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Ademption
Ademption refers to the situation where a specific gift to a named beneficiary in a will cannot proceed – or is adeemed – because the property which is the subject of the gift no longer forms part of the estate. This might apply where a testator makes a specific gift of a property to a beneficiary, ...
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Administration
Administration is defined in s 55 of the Succession Act 2006. Both an executor, in relation to probate, and an administrator, in relation to letters of administration, administer an estate. This means getting the assets in, paying the debts, and distributing the estate according to the will or ...
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Administration bond
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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Administrator
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:
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Administrator – Commission
See Commission below, which applies to executors and administrators.
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Administrator – Duties
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 of the ...
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Application for a grant of probate or letters of administration
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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Application to revoke a grant of probate or letters of administration
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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Assets – Transfer or transmission of assets
Real property
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Assets of the estate
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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Beneficiaries
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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Benjamin Order
The court can also make what is known as a Benjamin order, from the case Re Benjamin [1902] 1 Ch 723, where a distribution order was made without any finding that the person, a beneficiary in that case, was dead, preserving the possibility that the person may return. See Re Mas; Weston and ...
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Bequests
A bequest is a gift or legacy under a will.
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Burials, cremations, and funerals
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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Capacity
The appointor must have capacity to appoint a guardian. Although the appointor’s treating doctors and perhaps even expert medical practitioners can, be consulted, the question of capacity is not strictly a medical question. It is a matter about which the lawyer witnessing and certifying the ...
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Caveats
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 ...
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Codicils
A codicil is a document that amends a previously executed will rather than replacing it. 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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Commission
The Supreme Court of NSW website states the following in relation to commission:
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Contested will matters
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 are:
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Construction of the will
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 of the Succession Act ...
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Contracts entered into or completed before probate or administration is granted
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 permissible. ...
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Court – Power over wills and estates
The Supreme Court has jurisdiction over wills and estates, both by virtue of the legislation and as part of its inherent jurisdiction. 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 of the Probate and ...
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Crisp orders
See below under Family provision.
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Death
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) of the Law Reform (Miscellaneous Provisions) Act 1944, which extends to all causes of action except defamation, some matrimonial causes and claims under ...
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Death of joint executor
If one executor dies before a grant is made, unless the will says otherwise, the surviving executor 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 trustee. ...
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Death of single executor
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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Delegation by executor
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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Disclosure
See Subpoenas, notices to produce, and disclosure below.
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Executors
Application for probate by executor An executor named in a will is entitled as of right to a grant of probate.
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Grants
The three main types of grant of representation are:
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Hotchpot
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 each end up with the same benefit. In Re Tennant Mortlock v Hawker [1942] HCA 3 Dixon J said:
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Gifts to charities
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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Informal wills
The court can grant administration of an informal will. 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 ...
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Injunction
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
Intermeddling is when a named executor deals 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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Intestacy
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 their property: s 102 of the Succession Act 2006.
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Judicial advice
See Executors above.
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Joint mortgage responsibilities
Although upon the death of a joint proprietor the proprietary interest is lost to the surviving joint tenant, 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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Joint ownership
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 of the Real Property Act 1900.
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Larke v Nugus letters
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:
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Legislation
Guardianship Act 1987 Guardianship Regulation 2016
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Letters of administration
See Applications for a grant of probate or letters of administration above. See also Administrator, Distribution and Grants above.
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Life estates and similar interests
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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Life tenancy
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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Litigation
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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Missing will
It is possible – and not 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 and also Williamson v Pay [2020] QSC 66. In this regard the NSW Supreme Court’s website states:
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Personal liability of executor
Section 92 of the 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 ...
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Property of the estate
See Assets above.
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Rectification of a will
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’s instructions. Applications for ...
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Renunciation as executor
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 the executor has intermeddled with the estate, however, then they may lose their right to renounce. ...
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Replacement or removal of executor
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 of the Probate and Administration Act ...
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Resignation of executor
An executor cannot resign once probate has been granted but may apply to the court for the grant to be revoked: s 66 of the Probate and Administration Act 1898. If the executor has intermeddled with the estate removal may not be permitted.
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Revocation
By the appointor 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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Small estates
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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Subpoenas, notice to produce and disclosure
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 No. SC EQ 11 and strongly indicated a preference for dealing with the ...
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Terminating lease after death of sole renter
Section 108 of the Residential Tenancies Act 2010 applies when terminating a lease after the death of the sole renter. Suppose the executor or next of kin has given the landlord written notice of the death. In that case, the lease will terminate 28 days later, or earlier by agreement – ...
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Family provision
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Generally
An appointment of enduring guardian by instrument under the Guardianship Act 1987 allows a person, the appointor, to appoint another person, the guardian, to make medical and lifestyle decisions for them should they become incapable of doing so themselves. It is an entirely separate and distinct ...
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Adequate provision
Pursuant to s 59(1)(c) an order can only be made if:
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Adult children
Claims by adult children against an estate are perhaps the most common type of claim under Chapter 3 of the Succession Act 2006. In Megerditchian v Khatchadourian [2019] NSWSC 1870 the court said at [177]:
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Adult child under a promise
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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Adult stepchild
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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Affidavits
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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Application for grant not required
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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Attempts to expressly disinherit eligible persons
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 ...
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Bare paternity
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 13-year-old son who had never had any contact ...
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Close personal relationship
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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Costs
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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Crisp orders
See below under Family provision.
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De facto partner
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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De facto partner – Same sex
For the purposes of s 57(1)(b) of the 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 ...
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Dependency
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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Disclosure
See Subpoenas, notices to produce, and disclosure below.
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Eligible persons
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:
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Estrangement
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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Extension of time
Section 58(2) of the Succession Act 2006 provides that:
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Factors warranting
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 ...
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Family law orders
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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Grandchildren
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:
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Interim provision
Pursuant to s 62 of the 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 ...
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Intestacy
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 their property: s 102 of the Succession Act 2006.
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Legislation
Guardianship Act 1987 Guardianship Regulation 2016
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Matters to be considered by the court
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 of the Succession Act 2006, went on to provide a detailed exposition of the matter which the court must consider – and the way they should be ...
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Notional estate
Definition of notional estate Section 3 of the Succession Act 2006 provides the following definitions:
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Orders
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 both satisfied that the claimant is an eligible person for whom inadequate provision has been made in the will, or on intestacy, and that there are factors ...
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Release of rights
Section 95 provides for a person to grant a release of their family provision rights, subject to court approval, as follows:
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Testamentary freedom
It is often argued in family provision cases that significant weight should be given to the testator’s freedom to dispose of their 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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Widows
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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Powers of attorney
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Generally
An appointment of enduring guardian by instrument under the Guardianship Act 1987 allows a person, the appointor, to appoint another person, the guardian, to make medical and lifestyle decisions for them should they become incapable of doing so themselves. It is an entirely separate and distinct ...
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Application of the legislation
Part 2 of the Act 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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Appointment
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 of the Guardianship Act 1987. An appointment under the Act only has effect when a ...
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Attorney
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 on what 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 ...
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Capacity
The appointor must have capacity to appoint a guardian. Although the appointor’s treating doctors and perhaps even expert medical practitioners can, be consulted, the question of capacity is not strictly a medical question. It is a matter about which the lawyer witnessing and certifying the ...
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Corporations
The Act applies to natural persons, not corporations.
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Death
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) of the Law Reform (Miscellaneous Provisions) Act 1944, which extends to all causes of action except defamation, some matrimonial causes and claims under ...
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Delegation
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 of the Powers of Attorney Act. A substitute attorney appointed by the principal may act during a vacancy of the specified attorney or a ...
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Directions
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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Directors
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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Enduring power of attorney
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 of the Powers of Attorney Regulation 2024, as opposed to Form 1. An enduring power of attorney continues to have effect even if the principal loses mental ...
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Execution
See Witnesses below. Note that the definition of sign under s 21 of the Interpretation Act 1987 includes making a mark.
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Executor
The executor or administrator of an estate cannot delegate the functions of their office and therefore cannot appoint an attorney. However, see s 72 of the Probate and Administration Act 1898 where an attorney may apply for a grant where the person entitled to apply for a grant is out of the ...
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General power of attorney
A general power of attorney that is in, or to the effect of, Form 1 specified in Schedule 2 of the Powers of Attorney Regulation 2024 creates a prescribed power of attorney for the purpose of the Act: s 8 of the Powers of Attorney Act 2003. A general power of attorney is the simplest type ...
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Incommunicate
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 ...
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Insolvency
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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Interstate powers
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. It is possible to rely in NSW on an ordinary ...
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Irrevocable power of attorney
A power of attorney may be expressed to be irrevocable: s 15 of the Powers of Attorney Act 2003. 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 ...
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Joint attorneys
If attorneys are appointed to act jointly, all the attorneys must sign documents or act together and if one attorney vacates office – as defined in s 5 of the Act –the power of attorney is terminated, unless the document specifies otherwise and at least one attorney remains in office: ...
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Legislation
Guardianship Act 1987 Guardianship Regulation 2016
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Limitations
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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Liquidator
A liquidator may appoint an attorney to act on behalf of the liquidator in the administration of the company. See Australian Guarantee Corporation Ltd v Registrar of Titles (1992) 7 ACSR 577.
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Management of the estate
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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Medical decisions – Enduring guardianship
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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Overseas powers
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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Prescribed power of attorney
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 ...
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Principal
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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Registration
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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Review
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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Revocation
By the appointor 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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Trustee
A prescribed power of attorney does not confer authority to act as trustee: s 10 of the Powers of Attorney Act 2003.
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Vacancy in the office of attorney
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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Witnesses
Who can be a witness? An appointment of enduring guardian can only be witnessed by an eligible witness as defined in s 5 of the Guardianship Act 1987. This includes a lawyer.
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Wills
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Generally
An appointment of enduring guardian by instrument under the Guardianship Act 1987 allows a person, the appointor, to appoint another person, the guardian, to make medical and lifestyle decisions for them should they become incapable of doing so themselves. It is an entirely separate and distinct ...
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Administration
Administration is defined in s 55 of the Succession Act 2006. Both an executor, in relation to probate, and an administrator, in relation to letters of administration, administer an estate. This means getting the assets in, paying the debts, and distributing the estate according to the will or ...
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Administrator
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:
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Alteration
Alterations to a will are permitted by s 14 of the 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 of the Succession ...
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Beneficiaries
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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Burials, cremations, and funerals
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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Capacity
The appointor must have capacity to appoint a guardian. Although the appointor’s treating doctors and perhaps even expert medical practitioners can, be consulted, the question of capacity is not strictly a medical question. It is a matter about which the lawyer witnessing and certifying the ...
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Charities
See Beneficiaries above.
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Construction of will
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 ...
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Contracts to make wills
People are free to enter into contracts to leave property by will. See the precedent Contract to Make Mutual Wills on 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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Court made wills
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 of the Succession Act 2006. Such wills are often known as statutory wills. See Fenwick, Re; Application of J R ...
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Dispensing with requirements for execution, alteration, or revocation of a will
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 estate property
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 of the Succession Act 2006. The provisions of any lease agreement may override this provision.
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Divorce or annulment of marriage
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 of the Succession Act 2006. Any beneficial gift to the former spouse ...
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Dual or multiple wills
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, a will in each jurisdiction will be required; one ...
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Execution
See Witnesses below. Note that the definition of sign under s 21 of the Interpretation Act 1987 includes making a mark.
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Executor
The executor or administrator of an estate cannot delegate the functions of their office and therefore cannot appoint an attorney. However, see s 72 of the Probate and Administration Act 1898 where an attorney may apply for a grant where the person entitled to apply for a grant is out of the ...
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Extrinsic evidence to construe will
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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Foreign wills
See International wills below.
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Homemade wills
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 ...
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In contemplation of marriage
A will is revoked by marriage, unless it is made in contemplation of a particular marriage: s 12 of the 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 ...
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Incorporation by reference
A document may be incorporated into a will by referring to it. McDonald J stated in Fast and Ors v Rockman and Ors [2015] VSC 337 at [9]:
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Informal wills
The court can grant administration of an informal will. 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 ...
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Informal wills and solicitors’ duties
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
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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Legislation
Guardianship Act 1987 Guardianship Regulation 2016
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Living wills
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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Making a will
A will is not valid unless it is in writing and duly witnessed. See Witnesses below and s 6 of the Succession Act 2006. However, these provisions are overridden if a will is made pursuant to s 18 of the Succession Act 2006, which provides that a will can be made for a person without ...
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Marriage and domestic relationships – Effect on existing will
A will is revoked by marriage, unless it is made in contemplation of marriage: s 12 of the Succession Act 2006. See Revocation below.
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Minimum age of will maker
Pursuant to s 5 of the 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:
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Minors – Court may authorise minor to make, alter, or revoke
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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Multiple wills
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 New South Wales will is valid and effective to deal with the testator’s assets in New South Wales. Each ...
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Mutual wills
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 go ...
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Negligence – Solicitor’s duty of care
Badenach v Calvert [2016] HCA 18:
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Promises to make a will or a bequest
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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Property that can be dealt with in a will
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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Rectification
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 ...
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Revocation
By the appointor 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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Self-made wills
See Homemade wills above.
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Solicitors
See also Capacity and Negligence – Solicitor’s duty of care above and Witnesses below.
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Statutory wills
See Court made wills above.
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Survivorship
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 of the Succession Act 2006 states that beneficiaries to whom a disposition of property is made in a will must survive the testator by ...
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Superannuation
Are superannuation proceeds dealt with under a will? Superannuation is not the personal property of the testator, but rather it is held on their behalf by the trustees of their superannuation fund and cannot be disposed of in a will, unless the trustees of the superannuation fund have previously ...
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Suspicious circumstances
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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Testamentary capacity
See 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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Testator
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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Testator’s family maintenance
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 ...
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Who can inspect the will of a deceased person?
Section 54(2) of the Succession Act 2006 lists the people who are entitled to see the will after the testator has died. These are:
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Witnesses
Who can be a witness? An appointment of enduring guardian can only be witnessed by an eligible witness as defined in s 5 of the Guardianship Act 1987. This includes a lawyer.
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101 Subpoena Answers
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Overview
Jurisdictions, types of subpoenas and other compulsory production While references to legislation and courts in this guide are NSW based, unless otherwise stated, the general law relating to subpoenas does not differ between states – only the procedure in some respects.
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A. Initial considerations
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Jurisdictions, types of subpoenas and other compulsory production
While references to legislation and courts in this guide are NSW based, unless otherwise stated, the general law relating to subpoenas does not differ between states – only the procedure in some respects. Subpoena law is fairly settled and consistent across all Australian jurisdictions. The High ...
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Definition of documents
Uniform evidence law applies in NSW, Victoria, Tasmania and the Territories. However, there are variations between the various Evidence Acts in these jurisdictions. There is a useful comparative chart prepared by the Commonwealth Attorney-General’s Department regarding differences between the ...
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The implied undertaking
One of the most important things to know about subpoena law is the so-called implied undertaking, also known as the Harman undertaking, or the Hearne v Street undertaking. The common law provides that production of and access to documents under subpoena, even without any other court order, is ...
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B. Acting for a client who receives a subpoena
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Acting for a client who receives a subpoena
One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will better equip practitioners to draft and issue subpoenas for clients who are parties to litigation. Once the purpose of the subpoena ...
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What happens when a client is served with a subpoena
Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ...
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Inappropriate responses
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Ignoring the subpoena
Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ...
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Overly enthusiastic compliance
At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for All documents about X, when a client receives the subpoena and immediately brings their life and business to a screaming halt. They assume they must so ...
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Appropriate responses
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Review the subpoena
It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as:
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Comply if reasonable
The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that the client has in their possession or control and that are clearly relevant to the ...
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Object if necessary
Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Technically, documents should be produced to the court, subject to the objection: see Objections. Where the nature of the objection ...
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Objections
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Insufficient description
In criminal cases s 225 of the Criminal Procedure Act 1986 (NSW) provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not ...
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Legitimate forensic purpose
The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive superior ...
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Legitimate forensic purpose in criminal cases
In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a ...
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Legitimate forensic purpose in civil cases
There is a settled line of authority which requires the issuing party to demonstrate a legitimate forensic purpose for all of the material sought under a subpoena by showing that the documents sought have apparent relevance and can materially assist on an issue identified in the pleadings or can at ...
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Legitimate forensic purpose in federal cases
In the federal jurisdiction, the requirement for an issuing party to establish legitimate forensic purpose is well recognised via such cases as:
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Legitimate forensic purpose in family law cases
Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ...
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Negotiating the scope of objectionable subpoenas
Most often the legitimate forensic purpose objection will relate to the breadth of the subpoena – the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no legitimate forensic purpose. Often a subpoena ...
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Oppression
A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to legitimate forensic purpose. Where a subpoena causes unreasonable trouble and expense to the ...
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Public interest immunity
Public interest immunity is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R [1984] HCA 85 and has frequently been claimed, considered and applied since. ...
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Statutory privileges
There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ...
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Legal professional privilege
Legal professional privilege is a complex area. It exists in both common law and by virtue of ss 117-119 of the Evidence Act 1995 and it depends which jurisdiction as to which iteration applies. See: Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 at [11]. Both forms of ...
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Arguing a subpoena objection in court
If the subpoena is pressed over an objection the objecting party needs to file the appropriate document to bring the objection before the Court. If unsure, check the rules of the Court in which the subpoena is issued or ask the Court registry. The procedure varies not just from state to state, but ...
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Forms - Response and objections
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Civil
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Notice of motion
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Example - Notice of motion - to set aside a subpoena
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Affidavit
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Family
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Subpoena - Family Law
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Affidavit - Family law and child support proceedings
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C. Acting for a client who issues a subpoena
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Power to issue a subpoena
In civil cases Part 33 of the Uniform Civil Procedure Rules 2005 (NSW) contains the provisions relating to subpoenas. In other jurisdictions see:
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Why – and why not – to issue a subpoena
A subpoena is a tactical tool in litigation but should be employed as part of the overall strategy. A subpoena allows a party to obtain evidence that might support their case. It should be an integral part of the case theory. Issue a subpoena to obtain documents that are likely to exist and will ...
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When to issue a subpoena
In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from the instructions and the formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building the case. However, ...
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How to issue a subpoena
Applying to the court The procedure for issuing subpoenas and inspecting documents is set out in the applicable civil or criminal procedure rules for each jurisdiction and covered in various levels of detail on the various court websites. See the Victorian County Court website, for example, which ...
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Drafting a subpoena
Who is the right recipient? Subpoenas need to be addressed to a person.
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Examples of good and bad drafting of the schedule to a subpoena
Scenario: A client Vicki Victim is the plaintiff in a civil claim for damages against Peter Puncher for injuries sustained as a result of an assault upon the client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ...
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How, when and where to serve a subpoena
Always check the specific rules for service for the specific court when issuing a subpoena: see the links to court websites in Power to issue a subpoena or Further information. Generally, subpoenas require personal service, unless they are directed to police or other public officers. See for ...
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Conduct money
Conduct money is the cost of getting the documents or the person subpoenaed to court. If no conduct money is paid when a subpoena is served, the addressee may be unable or unwilling to produce documents, or to attend court to give evidence. Whether the non-payment of conduct money is a legitimate ...
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Costs
In criminal proceedings, generally only a party to the proceedings can seek or obtain a costs order. A third party recipient of a subpoena is not a party: s 221 of the Criminal Procedure Act 1986 (NSW). However, some jurisdictions differ – Queensland legislation specifically provides that a ...
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Subpoena forms
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Civil
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Subpoena to produce with subpoena notice and declaration
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Subpoena to attend to give evidence
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Subpoena to attend to give evidence and to produce with subpoena notice and declaration
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Criminal
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Subpoena for production
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Subpoena for production and to give evidence
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Subpoena to give evidence
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Federal Circuit and Family Court of Australia
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Subpoena - Family Law
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Affidavit - Family law and child support proceedings
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Annexure sheet
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Federal Court
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Subpoena to give evidence - Link to Federal Court of Australia
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Subpoena to produce documents
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Subpoena to give evidence and produce documents
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D. Production and access
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Production and access
A subpoena is a court order requiring production of stated documents to the court. Even if there is an objection, unless the objection is for oppression or relates to public interest immunity, then the documents should be produced, subject to the objection. The way to deal with this is to produce ...
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Extension of time for production
It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ...
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What happens if a subpoena is not answered
As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 of the Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where ...
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What to do if subpoenaed documents are sent to a lawyer directly
When a subpoena is issued the documents are produced to the court, not to the issuing party or their lawyer. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court ...
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Access orders in different jurisdictions and the rules of court
Access to, or inspection of, documents produced under subpoena is governed by the rules of court applicable to the various jurisdictions and always at the court’s discretion. See for example, r 33.8 of the Uniform Civil Procedure Rules 2005 (NSW). It is important to know how access orders are ...
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