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Family Provision Claims

NSW

This publication covers family provision claims in New South Wales when acting for the plaintiff or the estate.

4 Matter Plans

Overview

The commentaries outline the three-stage process relevant to family provision claims. This enables practitioners to offer precise initial advice and manage a matter from negotiation through to settlement or hearing.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Also included are 101 Succession Answers (NSW) and 101 Subpoena Answers, which are useful reference guides.

Precedents in this publication include:

  • Suite of letters to the client and other relevant parties;
  • Offers of compromise and Calderbank offers;
  • Deed of settlement of a family provision claim;
  • Deed of family arrangement;
  • Brief to counsel with example content;
  • Necessary forms and precedents to file or respond to a claim
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4 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Family Provision Claims (NSW) - Acting for the Estate
  • Folder icon Reference materials
    • Item icon 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 ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 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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    • Item icon 101 Subpoena Answers
    • Item icon 101 Costs Answers
    • Item icon Further information
  • Item icon Overview and limitation periods
    Legislative scheme Chapter 3 of the Succession Act 2006 (the Act) provides for family provision claims.

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Family provision claims - Acting for the estate
    • Item icon To do list - Family provision claims - Acting for the estate
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Family provision claims - Acting for the estate
    • Item icon Conflict of interest check
    • Item icon Initial letter to client with costs agreement
    • Item icon Costs agreement - NSW
    • Item icon Standard costs disclosure form for clients - Fees under $3000
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Item icon Letter to plaintiff's solicitor in response to their initial letter
    • Item icon 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 ...

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    • Item icon 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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    • Item icon 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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    • Item icon 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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    • Item icon 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:

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    • Item icon 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 ...

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    • Item icon Brief to counsel - Family provision claim
    • Item icon Example content - Brief to counsel - Family provision claim
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. Settling the matter
    • Item icon 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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    • Item icon 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 ...

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    • Item icon 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 ...

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    • Item icon 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 ...

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    • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
    • Item icon 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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    • Item icon Letter to beneficiary affected by settlement of claim
    • Item icon Offer of compromise by defendant
    • Item icon Calderbank offer by defendant
    • Item icon Consent judgment or consent order
    • Item icon Clause - Consent orders for provision made in the proceedings
    • Item icon Deed of settlement of a family provision claim
    • Item icon Letter reporting to defendant on settlement
  • Folder icon C. Going to court
    • Item icon Letter to client enclosing Practice Note SC EQ 7
    • Item icon Enclosure - Practice Note No. SC Eq 7 - Family Provision - Supreme Court of New South Wales
    • Item icon 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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    • Item icon 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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    • Item icon 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 ...

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    • Item icon Brief to counsel - Family provision claim
    • Item icon Example content - Brief to counsel - Family provision claim
    • Item icon 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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    • Item icon Letter to eligible person
    • Item icon 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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    • Item icon Defendant's notice to eligible persons
    • Item icon 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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    • Folder icon If required - Tutors
      • Item icon 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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      • Item icon Consent to act as tutor
    • Item icon 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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    • Item icon Draft short minutes of order - First directions hearing
    • Item icon Appearance
    • Item icon Letter to client after first directions hearing
    • Item icon 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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    • Item icon 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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    • Item icon Draft short minutes of order - Second directions hearing
    • Item icon 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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    • Item icon Draft short minutes of order - Final directions hearing
    • Item icon Clause - Affidavit of executor administrator of the estate
    • Item icon Clause - Defendant's affidavit identifying claimant as beneficiary
    • Item icon Clause - Defendant's affidavit as to administrator's costs and disbursements to completion of mediation
    • Item icon Letter to client enclosing draft affidavits
    • Item icon Letter to client enclosing affidavits for signing
    • Item icon Clause - Affidavit of service of plaintiff’s application by administrator - Paragraph 9.2 PN SC EQ 7
    • Item icon 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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    • Item icon Subpoena to produce with subpoena notice and declaration
    • Item icon Notice to produce to court
    • Item icon Notice to produce for inspection
    • Item icon 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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    • Item icon Letter to witness enclosing affidavit for signing
    • Item icon Affidavit
    • Item icon Clause - Defendant's final affidavit as to costs
    • Item icon Clause - Generative AI disclosure
    • Item icon Clause - Generative AI disclosure with annexure or exhibit
    • Item icon Draft court book index
    • Item icon Draft agreed chronology
    • Item icon Outline of submissions - Defendant
    • Item icon 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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  • Folder icon D. Finalising the matter
    • Item icon 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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    • Item icon Letter to client finalising the matter
    • Item icon Example invoice incorporating notification of client's rights - NSW
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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