Family Provision Claims

4 Matter Plans Included

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:
  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

A family provision claim is an application to the court by an eligible person for provision, or further provision, out of the estate of a deceased person. The court may make an order where it is satisfied that adequate provision for the proper maintenance, education, or advancement in life of the ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
Limitation periods

The limitation period for an application for a family provision order is 12 months from the date of death: s 58 of the Succession Act 2006. The section provides:
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Summary of the process

The usual steps when acting for a plaintiff in a family provision claim include:
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
- Privacy collection notice
- Conflict of interest check
- Initial letter to client with costs disclosure - Family provision claims - Acting for the plaintiff
- Costs agreement - NSW
- Scope of work - Family provision claims - Acting for the plaintiff
- 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
    
    Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
- General deeds, agreements, execution clauses, and statutory declarations
  - Deeds and Agreements
  - Deeds
    
    Deed for general use
    
    Deed of guarantee
    
    Deed of release
    
    Confidentiality deed
    
    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
    
    Mediation 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
B. Initial considerations and gathering information
- Letter to client about potential claim
- Letter to client enclosing Practice Note SC EQ 07
- Practice Note - Probate and Family Provision List SC EQ 07 - Supreme Court of New South Wales
- Initial letter to other side requesting copy of will
- Initial letter to other side's solicitor requesting copy of will
- Initial letter to other side requesting details of estate and foreshadowing claim
- Initial letter to other side's solicitor requesting details of estate and foreshadowing claim
- Initial letter to other side requesting details of estate and foreshadowing claim - Intestate estate
- Initial letter to other side's solicitor requesting details of estate and foreshadowing claim - Intestate estate
- 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 are wide. By any measure, the court's discretionary power in determining these claims is broad. Family provision cases are also strictly case-managed by the ...
  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 designating 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, 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 – 2-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.
C. Settling the matter
- Settling the matter
  
  Negotiating with the estate Even before proceedings are commenced, attempts can be made to resolve the claim. An executor or administrator has a duty to act in the best interests of the estate, which may include compromising any genuine claims against the estate. There is also an incentive for ...
  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. An executor or administrator has a duty to act in the best interests of the estate, which may include compromising any genuine claims against the estate. There is also an 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.
- Advising the client about the claim
  
  Realistic advice to the claimant about the likely outcome shapes the approach to be taken to negotiations and offers of settlement. Where the claimant is competing for provision with a spouse or partner the general rule needs to be remembered. Especially in the case of a lengthy marriage or ...
  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 in the Reference materials folder on the matter plan 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 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
- Settlement checklist (issued 2020) – Supreme Court of New South Wales
- Approvals
  
  Settlements made on behalf of, or against, persons under a legal incapacity in relation to any claim enforceable by proceedings in the court, whether made before or after proceedings are commenced, must be approved by the court. See ss 75 and 76 of the Civil Procedure Act 2005. ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- 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 to client reporting on settlement
- Letter to client enclosing settlement deed
- Deed of family arrangement
- Authority to settle and receive
- Direction to pay and authority to receive
- If required - Release from family provision claim
  - Deed of release under section 95 of the Succession Act 2006 NSW
D. 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 under s 59 of the Succession Act 2006. The District Court has jurisdiction under s 134(1)(c) and (2) of the District Court Act 1973 to make an ...
  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 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 defendant.
  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
  
  The summons and other documents must be served on the estate in accordance with the provisions of r 10.5 of the Uniform Civil Procedure Rules 2005. Methods of service include personal service or posting a copy of the document to the person's residential or business address or service on the ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Letter to client after filing claim
- Letter to other side 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.
- General form
- Clause - 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 affidavits
- Letter to client enclosing affidavit for signing
- Letter to other side's solicitor serving summons on estate
- Letter to other side serving summons personally on executor or administrator
- Letter to process server enclosing documents for service
- Affidavit of service
- Expert evidence
  
  Expert evidence in family provision claims is not 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 Note SC EQ 07 ...
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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 ...
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- Discovery, subpoenas and notices to produce
  
  Discovery is not usually available in equity proceedings: Practice Note 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 by consent. ...
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- 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. It is common for the parties to be represented by counsel at the first directions hearings.
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- 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 affidavit
- Letter to witness enclosing affidavit for signing
- Negotiating with the estate
  
  Even before proceedings are commenced, attempts can be made to resolve the claim. An executor or administrator has a duty to act in the best interests of the estate, which may include compromising any genuine claims against the estate. There is also an 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.
- Mediation
  
  Practice Note SC EQ 07 and Practice Note SC Gen 6 – Mediation 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 ...
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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 further affidavits of a party or beneficiary and of any ...
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- Draft short minutes of order - Second directions hearing
- 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
- 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
    
    Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
- Plaintiff's affidavit used in family provision matters - Practice note no. SC Eq 7
- Clause - Plaintiff's final affidavit as to costs
- Evidence at the hearing
  
  The evidence at the hearing will generally be given by affidavit. See the Supreme Court Civil Litigation guides for more information about affidavits, annexures, and exhibits. Under r 35.2 of the Uniform Civil Procedure Rules 2005, consideration needs to be given as to notices for any ...
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- Subpoena to attend to give evidence
- Letter to witness serving subpoena to give evidence
- Draft court book index
- Outline of submissions - Acting for the plaintiff
- Draft agreed chronology
- After the hearing
  
  Judgment is commonly reserved in family provision matters. The client needs to be told at the end of the hearing that the decision may take some weeks or months, that the parties will be notified of the date judgment is to be delivered, and that attendance is not usually necessary. Costs are ...
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- Appeals
  
  An appeal from a decision of a single judge of the Supreme Court lies to the Court of Appeal. Under Part 51 of the Uniform Civil Procedure Rules 2005 a notice of appeal must be filed within 28 days after the material date, although filing and serving a notice of intention to appeal within ...
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E. Finalising the matter
- Authority to settle and receive
- Direction to pay and authority to receive
- Letter to client enclosing settlement deed
- Letter to client finalising the matter - Successful application
- Letter to client finalising the matter - Unsuccessful application
- Example invoice incorporating notification of client's rights - NSW
- Closing the file
- File closing checklist
Comments and suggestions for By Lawyers

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:
  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

A family provision claim is an application to the court by an eligible person for provision, or further provision, out of the estate of a deceased person. The court may make an order where it is satisfied that adequate provision for the proper maintenance, education, or advancement in life of the ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
Summary of the process

The usual steps when acting for the estate in a family provision claim include:
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 estate
- To do list - Family provision claims - Acting for the estate
- First steps
- Client details and verifying identity
- Retainer instructions - Family provision claims - Acting for the estate
- Privacy collection notice
- Conflict of interest check
- Initial letter to client with costs disclosure - Family provision claims - Acting for the estate
- Costs agreement - NSW
- Scope of work - Family provision claims - Acting for the estate
- 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
    
    Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
- General deeds, agreements, execution clauses, and statutory declarations
  - Deeds and Agreements
  - Deeds
    
    Deed for general use
    
    Deed of guarantee
    
    Deed of release
    
    Confidentiality deed
    
    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
    
    Mediation 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
B. Initial considerations and gathering information
- Letter to other side's solicitor in response to their initial letter
- 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. The first task in acting for the estate is to ascertain its ...
  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 are wide. By any measure, the court's discretionary power in determining these claims is broad. Instructions should therefore be detailed, but they need not be ...
  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 designating 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 when representing an estate facing a family provision claim is whether the claimant can establish eligibility under s 57 of the Succession Act 2006. 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 – 2-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 to brief counsel at an early stage. Unlike in 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 ...
  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
C. Settling the matter
- 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 to ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- 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 to 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
  
  Realistic advice to the client about the likely outcome shapes the approach to be taken to negotiations and offers of settlement. Where the claimant is competing for provision with a spouse or partner of the deceased, the general rule needs to be remembered. Especially in the case of a lengthy ...
  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 in the Reference materials folder on the matter plan 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 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
- Mechanics of settlement
  
  Where no proceedings have commenced, claims can be settled by a deed of family arrangement or a simple deed of settlement. The taxation implications need to be considered, especially the possible capital gains tax consequences if the transaction is by means other than a deed of family arrangement. ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Settlement checklist – Supreme Court of New South Wales
- Approvals
  
  Settlements made on behalf of, or against, persons under a legal incapacity in relation to any claim enforceable by proceedings in the court, whether made before or after proceedings are commenced, must be approved by the court. See ss 75 and 76 of the Civil Procedure Act 2005. ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Letter to beneficiary affected by settlement of claim
- Offer of compromise by defendant
- Calderbank offer by defendant
- Consent judgment or consent order
- Clause - Consent orders for provision made in the proceedings
- Deed of family arrangement
- Deed of settlement of a family provision claim
- Letter to client reporting on settlement
- If required - Release from family provision claim
  - Deed of release under section 95 of the Succession Act 2006 NSW
D. Going to court
- Letter to client enclosing Practice Note SC EQ 07
- Practice Note - Probate and Family Provision List SC EQ 07 - Supreme Court of New South Wales
- 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 under s 59 of the Succession Act 2006. ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Appearance
- 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 ...
  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 in 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 ...
  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
- Notice to eligible persons
  
  Pursuant to both Practice Note SC EQ 07 and clause 4(1) under the heading Succession Act 2006 in Schedule J of the Supreme Court Rules 1970, the plaintiff must serve a notice on the administrator, with the summons, setting out who is or may be an eligible person and their ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Letter to eligible person serving documents
- 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.
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Disclosure statement
- Defendant's notice to eligible persons
- 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, best endeavours should be used to obtain the required ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- If required - Tutors
  - 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) of the Uniform Civil Procedure Rules 2005. Under r 7.16 a tutor must file the following documents ...
    This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
  - Consent to act as tutor
- 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. It is common for the parties to be represented by counsel at the first directions hearing.
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- Draft short minutes of order - First directions hearing
- Letter to client after first directions hearing
- Mediation
  
  Practice Note SC EQ 07 and Practice Note SC Gen 6 – Mediation 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 ...
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- Mediation – Supreme Court of New South Wales
- 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 further affidavits of a party or beneficiary and of any ...
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- Draft short minutes of order - Second directions hearing
- 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
- Clause - Affidavit of executor administrator of the estate
- Clause - Defendant's affidavit identifying claimant as beneficiary
- Clause - Defendant's affidavit as to administrator's costs and disbursements to completion of mediation
- Letter to client enclosing draft affidavits
- Letter to client enclosing affidavits for signing
- Clause - Affidavit of service of plaintiff’s application by administrator - Paragraph 18.10 PN SC EQ 7
- Discovery, subpoenas and notices to produce
- Subpoena to produce with subpoena notice and declaration
- Notice to produce to court
- Notice to produce for inspection
- Evidence at the hearing
  
  The evidence at the hearing will generally be given by affidavit. See the Supreme Court Civil Litigation guides for more information about affidavits, annexures and exhibits. Under r 35.2 of the Uniform Civil Procedure Rules 2005, consideration needs to be given as to notices for any witnesses ...
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- Letter to witness enclosing affidavit for signing
- Affidavit
- Clause - Defendant's final affidavit as to costs
- Clause - Generative AI disclosure
- Clause - Generative AI disclosure with annexure or exhibit
- Draft court book index
- Draft agreed chronology
- Outline of submissions - Defendant
- After the hearing
  
  Judgment is commonly reserved in family provision matters. The client needs to be told at the end of the hearing that the decision may take some weeks or months, that the parties will be notified of the date judgment is to be delivered, and that attendance is not usually necessary. Costs are ...
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E. Finalising the matter
- Finalising the matter
  
  The estate solicitor frequently has considerable 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 - Family provision claims - Acting for the estate
- Example invoice incorporating notification of client's rights - NSW
- Closing the file
- File closing checklist
Comments and suggestions for By Lawyers

101 Succession Answers for New South Wales

Including:
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Estates
- Accounts
  
  Duty to keep accounts The executor or administrator has a duty to keep proper accounts and records of the estate’s administration, and to make them available to the beneficiaries.
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- Ademption of gifts
  
  A testamentary gift of an asset is adeemed, that is, revoked or withdrawn, if the asset no longer exists on the testator’s death. If a testator sells a bequeathed asset after making their will, the question arises whether the proceeds of the sale should go to the beneficiary to satisfy the bequest.
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- Administration
  
  Under s 55 of the Succession Act 2006, administration of a deceased's estate includes a grant of probate or letters of administration made in New South Wales or resealed under New South Wales legislation. Under s 3 of the Probate and Administration Act 1898, administration includes:
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- Administration bond or guarantee
  
  Under s 64 of the Probate and Administration Act 1898, the court can require an administrator to provide a surety up to the value of the estate against any loss resulting from a breach of their duties. This surety, or financial guarantee, is known as an administration bond. The NSW Trustee and ...
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- Administrator
  
  The definition of an administrator in both s 3 of the Probate and Administration Act 1898 and s 3 of the Succession Act 2006 is identical. It includes the NSW Trustee and Guardian and anyone who is granted administration. The term administratrix, previously used to refer to a female ...
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- Application for a grant of probate or letters of administration
  
  Application requirement Whether a deceased leaves a valid will, a will that does not appoint an executor or cover the entire estate, or no will at all, applying for a grant of probate or letters of administration is not always a legal requirement. It depends on the assets in the estate.
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- Application to revoke a grant of probate or letters of administration
  
  Under Division 7 of Part 78 of the Supreme Court Rules 1970, an application to revoke a grant of probate can be made to the Supreme Court. However, the Probate and Administration Act 1898 does not expressly provide the court with the power to revoke a grant of probate. In O'Brien v ...
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- Assets and liabilities of the estate
  
  Beneficiary in possession of estate property It is the duty of the executor or administrator to get in the estate assets, including any property held by beneficiaries.
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- Beneficiaries
  
  Beneficiary liable for a debt to the estate If a beneficiary is personally liable for a debt owed to the estate, then the rule in Cherry v Boultbee (1839) 4 Myl & Cr 442; 41 ER 771 applies. The beneficiary is not entitled to participate in the distribution of the estate without paying their ...
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- Bequests
  
  A bequest is a gift by will. A specific bequest is a gift of specified property, for example, a watch.
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- Burials, cremations, and funerals
  
  Deceased's wishes Testators often include instructions in their will about funeral arrangements or organ donation. However, these instructions are not legally binding on the executor.
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- Capacity
  
  A testator must have testamentary capacity when the will is executed for it to be valid. There is a presumption of capacity. If it is alleged that the testator lacked capacity, the onus is on the person making the allegation to support it, usually with medical evidence.
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- Caveats
  
  Caveat against an application for a grant Under s 144 of the Probate and Administration Act 1898, a person may lodge a caveat in the Supreme Court against an application for a grant of probate or letters of administration, or for the reseal of either grant.
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- Chain of executorial representation
  
  Under s 44A of the Probate and Administration Act 1898, when a sole executor or the last surviving executor dies, the executor of either one of them is the testator's executor by representation. This is the chain of executorial representation. Under s 44A(2), while this chain of ...
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- Challenges to a will
  
  An interested person can oppose an application for a grant of probate or letters of administration by challenging the validity of the will in question. To challenge a will, a party must demonstrate that they have rights likely to be affected by the disputed grant of probate or administration: ...
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- Codicils
  
  A codicil is a document that amends an existing will without replacing it. The will and codicil need to be read together to determine who the executors are and the terms of the will.
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- Co-executors – authority to act
  
  All the executors are required to participate when the estate:
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- Commission to legal personal representatives
  
  The right of a legal personal representative to receive payment of commission arises through:
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- Construction of the will
  
  When a will is unclear, the court may be required to construe, or interpret, a testator’s intended meaning to give effect to the will. Part 2.3 of the Succession Act 2006 governs the construction of wills, including those made under foreign law and international wills.
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- Court powers over wills and estates
  
  The Supreme Court has jurisdiction over wills and estates under legislation and as part of its inherent jurisdiction. Under Division 4 of Part 2 of the Probate and Administration Act 1898, the Local Court has limited power to act as a district agent for the registrar of the Supreme Court ...
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- Death
  
  See also Executor.
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- Disclosure of assets
  
  See Assets and liabilities of the estate.
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- Distribution
  
  Once a grant is issued, a legal personal representative can distribute the estate according to the will or under the intestacy provisions, subject to any claims brought against the estate within the prescribed time, or any time extended by the court. However, a legal personal representative risks ...
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- Duties of a deceased’s legal personal representative
- Executor
  
  An executor is a person named in a will who is responsible for carrying out the testator's instructions regarding the distribution of their assets after their death, and ensuring those assets are protected and preserved until final distribution. A company cannot be an executor, except the NSW ...
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- Grants in estate matters
- Hotchpot clause
  
  A hotchpot or adjustment clause is used to account for inter vivos gifts or loans, usually to the deceased's children, in a will. When those advancements are combined with the gifts to those children under the will, all the children receive an equal benefit. In Re Tennant Mortlock v Hawker [1942] ...
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- Informal wills
  
  The court can grant probate on an informal will under s 8 of the Succession Act 2006. Under s 8, the court can dispense with the formal requirements for making, altering, or revoking a will if satisfied that:
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- Injunction
  
  A dissatisfied beneficiary or claimant on an estate may seek an injunction to restrain the deceased's legal personal representative from dealing with estate property and, particularly, from selling real property. As with any application for injunctive relief, the applicant must undertake to pay ...
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- Insolvency
  
  For insolvent estates, the deceased's real and personal estate is administered under Part 1 of the Third Schedule of the Probate and Administration Act 1898, subject to any relevant provisions of the Bankruptcy Act 1966 (Cth): s 46C(1) of the Probate and Administration Act 1898.
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- Intermeddling
  
  A legal personal representative has no formal authority to deal with the deceased's property or to take any step in administering the estate until they obtain a grant. An executor or administrator intermeddles when they deal with estate property before a formal grant is made.
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- Intestacy
  
  Under s 102 of the Succession Act 2006, a person who dies intestate is someone who:
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- Joint mortgage responsibility
  
  On the death of a joint tenant, the responsibility for a registered mortgage passes to the surviving joint tenant. However, the estate of the deceased joint tenant may remain liable under any personal covenants of a mortgage.
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- Larke v Nugus letters
  
  In Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at paragraph 82, the Supreme Court discussed the English Court of Appeal decision in Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033, stating:
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- Legislation
  
  Applicable legislation includes:
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- Letters of administration
  
  See Application for a grant of probate or letters of administration.
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- Life estate
  
  A life estate, or life tenancy, is a proprietary interest in real property that can be registered on title. A trust that creates a life tenancy involves 4 parties:
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- Litigation
  
  The most typical claims against an estate are family provision claims and challenges to a will. A challenge to a will involves an interested person opposing an application for a grant of probate or letters of administration by seeking to impugn the will. See Re Estates Brooker-Pain and Soulos ...
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- Missing will
  
  A grant for probate or letters of administration can be obtained on a copy of a missing will: In the Will of Valerie Eve Robson (deceased) [2020] QSC 52, concerning probate, and Williamson v Pay [2020] QSC 66, concerning letters of administration. Regarding letters of administration, the Supreme ...
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- Multiple original copies of a will
  
  If a testator executed more than one copy of the same will, an application for probate or letters of administration with the will annexed must include all copies of that will. The executor's or administrator's affidavit will need to include how many copies were executed, and whether they have all ...
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- Multiple wills
  
  Theoretically, it is possible to have more than one will. This may be the case for a testator with assets in 2 or more different jurisdictions, typically Australia and another country. Only the local will in each jurisdiction needs to be proved. In New South Wales, however, having multiple ...
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- Passing over of an executor
- Personal liability of legal personal representatives
  
  Once an executor or administrator has obtained a grant, they can distribute in accordance with the will or under the rules of intestacy in Chapter 4 of the Succession Act 2006. Distribution is subject to any claims brought against the estate within the prescribed time or any extension of time ...
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- Probate
  
  See Application for a grant of probate or letters of administration.
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- Rectification of a will
  
  Under s 27 of the Succession Act 2006, the court can make an order to rectify a will if it is satisfied the will does not carry out the testator's intentions due to a clerical error or because the will does not give effect to the testator's instructions. An application to rectify a will must ...
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- Renunciation of executor
- Renvoi
  
  As defined by the court in Kong v Yan [2021] SASC 82, the doctrine of renvoi:
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- Replacement or removal of an executor
  
  If a named executor does not prove the will, renounce probate within 3 months of the testator's death, or cannot be found, the court may make a grant or order on an application made by:
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- Reseal
  
  See Application for a grant of probate or letters of administration.
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- Resignation of an executor
  
  An executor can resign from or renounce the office before applying for a grant, but cannot resign once probate has been granted. However, an executor can apply to the court to have the grant revoked: s 66.
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- Revocation of a grant
  
  See Application to revoke a grant of probate or letters of administration.
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- Small estates
  
  A small estate is one with assets not exceeding $15,000. Often, a grant is not necessary for a small estate. Most banks and other financial institutions will release assets without requiring a grant but usually seek an indemnity from the recipient.
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- Superannuation
  
  Superannuation does not form part of an estate and generally cannot be dealt with in a will. A member of a superannuation fund must make a binding nomination or binding nominations to direct the fund's trustee to deal with the proceeds of the member's superannuation death benefit on their death. ...
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- Survivorship
  
  When a joint tenant dies, their interest in the land automatically passes to the surviving joint tenant or tenants. This is known as the doctrine of survivorship. On the death of a person registered as a joint proprietor with any other person, the surviving joint proprietor will be registered as ...
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- Terminating a lease on death of a tenant
  
  A deceased tenant's estate is responsible for cleaning up the property and remains liable for rent until the residential rental agreement ends. Termination occurs when either the landlord or the tenant's legal personal representative gives notice to the other party: s 108 of the Residential ...
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- Trustees
  
  Once an estate's administration is completed, the executor becomes a trustee. In that capacity, the person may retire under s 8 of the Trustee Act 1925 or delegate if absent from the jurisdiction. It may be appropriate to advise administrators and trustees contemplating certain arrangements ...
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- Who can inspect a deceased’s will
Family provision claims
- About family provision generally
  
  The starting point for making wills is the legal principle of freedom of testamentary intent, meaning that a person should be able to leave their estate to whomever they choose, and to exclude anyone as a beneficiary. However, the previous Testator's Family Maintenance and Guardianship of Infants ...
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- Adequate provision
  
  Under s 59 of the Succession Act 2006, the court will make a family provision order if satisfied that:
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- Adult children including stepchildren
  
  Claims by adult children under Chapter 3 of the Succession Act 2006 are the most common type of claim against an estate. In Megerditchian v Khatchadourian [2019] NSWSC 1870 at paragraph 177, Parker J said:
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- Affidavits
  
  Evidence in family provision cases is provided by affidavit. See Supreme Court Practice Note - Probate and Family Provision List, which includes a pro forma affidavit with headings that correspond with the listed matters in s 60(2) of the Succession Act 2006. In Megerditchian v Khatchadourian ...
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- Application does not require a grant
  
  Under s 58(1) of the Succession Act 2006, an application for a family provision order can be made irrespective of whether probate or letters of administration has been granted. However, the court may grant administration under s 91 to allow an application for a family provision order to ...
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- Bare paternity
  
  Bare paternity describes a child's biological link to an absent father. In Harris v Carter [2020] NSWSC 196, the defendant argued that the relationship between the deceased and the plaintiff, a 13-year-old who had never had contact with his deceased father, was bare paternity. At ...
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- Bringing a claim
- Close personal relationship
  
  See also Dependency and Eligible persons. A close personal relationship is different to a de facto relationship.
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- Costs
  
  In family provision cases, costs do not always follow the cause. Sometimes, the estate pays an unsuccessful claimant's costs. However, a plaintiff may be required to pay the estate's costs if their claim lacks merit, they have rejected a reasonable offer of settlement, or they have behaved ...
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- Crisp order
  
  A Crisp order directs that the value of a testator's home be transferred to another property, for example, into a retirement unit for a surviving spouse, with the remaining estate passing to the final beneficiaries as specified in the testator's will once the spouse or other recipient dies. ...
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- De facto partners
  
  A de facto relationship is different to a close personal relationship. The categories of eligible persons in s 57 of the Succession Act 2006 include de facto partners: s 57(1)(b).
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- Dependency
  
  See also Close personal relationship and Eligible persons. Under s 57(1)(e), a claimant for family provision must 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 ...
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- Disclosure
  
  In Megerditchian v Khatchadourian [2019] NSWSC 1870 at paragraph 145, the court noted:
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- Eligible persons
  
  To make a family provision order regarding a deceased's estate, the court must be satisfied the applicant is an eligible person under s 57(1) of the Succession Act 2006:
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- Estrangement
  
  Towson v Francis [2017] NSWSC 1034 addressed estrangement between an adult child and a deceased parent. At paragraphs 79–80 of this case, Hallen J referred to his own previous decision in Underwood v Gaudron [2014] NSWSC 1055 as follows:
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- Extension of time
  
  Under s 58(2) of the Succession Act 2006, a family provision application must be lodged within 12 months of the deceased's date of death, unless the court orders otherwise on the applicant providing sufficient cause, or all parties consent to an application made out of time. An ...
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- Factors warranting a claim
  
  For eligible persons under s 57(1)(e) and (f) of the Succession Act 2006, the court must find factors warranting an application before it can make a family provision order. The 2 categories of eligible persons include:
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- Family law orders – impact on claims
  
  Dark v Dark [2016] NSWSC 1223 exemplified the interplay between family provision claims and previous family law property orders. This case involved a claim by a surviving spouse who was separated from the deceased at the time of his death. While separated, they signed a financial agreement under ...
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- Grandchildren
  
  Regarding claims by a grandchild, Hallen J in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at paragraph 113 set out the general principles he considered relevant. Four of those principles include:
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- Interim provision
  
  Under s 62 of the Succession Act 2006, an eligible person under Chapter 3 can apply for an interim provision from the estate while awaiting the final hearing. However, interim provision applications are rarely successful. Where an interim provision is granted, the applicant is usually ...
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- Intestacy
  
  Under s 102 of the Succession Act 2006, a person who dies intestate is someone who:
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- Legislation
  
  Applicable legislation includes:
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- Matters to be considered by the court
  
  For an application for a family provision order, the court is bound by s 59 of the Succession Act 2006, which outlines when a family provision can be made, and s 60, which sets out the matters for the court to consider. Both sections are covered under Adequate provision. In Wayne Laurence ...
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- Notional estate
  
  A notional estate claim is an application to the court to recover assets that were distributed in the 3 years preceding the testator's death. The aim of this type of claim is to prevent a person from trying to avoid a family provision order by giving away their assets before they die.
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- Orders
  
  The court can make family provision orders out of an estate only if it is satisfied that the claimant is an eligible person for whom adequate provision was not made in the will or on intestacy, and there are factors justifying an order.
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- Release of rights
  
  Section 95 allows a person to release their rights to apply for a family provision order, subject to court approval. An application for approval of a release of these rights can be made before or after the deceased's death.
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- Settlement
- Surviving spouses
  
  When the estate is sufficient, appropriate provision for a surviving spouse's maintenance and advancement generally includes unencumbered accommodation, usually the residence they shared with the deceased or its equivalent, and sufficient funds to ensure they are cared for and can maintain the ...
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- Testamentary freedom
  
  The legal principle of testamentary freedom is a person's right to distribute their estate as they choose on their death, including the right to exclude any person as a beneficiary from their will. In Banks v Goodfellow (1870) LR 5 QB 549 at 564, Cockburn CJ said:
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- Variation and revocation of order
  
  The court may vary or revoke a family provision order to allow provision for another eligible person out of property affected by the order, but only if that person shows sufficient cause for not having applied for a family provision order before the original order was made: s 70. If a grant of ...
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Guardianship and financial management
- Appointments
  
  Under Part 3 of the Guardianship Act 1987, the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) or the Supreme Court can appoint a person to make decisions on behalf of someone who lacks or has lost capacity to do so. A person appointed under a Part 3 ...
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- Enduring guardians
  
  See also Persons responsible for consent to treatment.
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- Execution of guardianship instruments
  
  In addition to affixing a seal, the definition of sign in Schedule 4 of the Interpretation Act 1987 includes making a mark.
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- Financial management
  
  Under Part 3A of the Guardianship Act 1987, NCAT can make financial management orders for a person who cannot manage their own financial affairs. This inability is separate and distinct from the person's ability to appoint an enduring guardian for themselves, or from the tribunal's authority ...
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- Functions of a guardian
  
  An enduring guardian's functions are set out in s 6E(1) and in the Appointment of Enduring Guardian form. These functions include:
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- Interstate and international guardians
  
  A person appointed under a corresponding law as another person's guardian or estate manager can apply to NCAT for recognition of their status: s 48B(1). On recognition, the person can act as guardian or manager, but only if the role they perform would be authorised by the corresponding law and ...
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- Jurisdiction
  
  Guardianship matters fall under the jurisdiction of NCAT's Guardianship Division or the Supreme Court of New South Wales. See also Review of appointment.
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- Legislation
  
  Applicable legislation includes:
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- McKenzie friends
  
  McKenzie friends are named after McKenzie v McKenzie (1970) 3 WLR 472, an English family law case. A McKenzie friend assists an unrepresented, or self-represented, litigant in court.
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- Persons responsible for consent to medical and dental treatment
  
  Part 5 of the Guardianship Act 1987 aims to ensure no-one is denied essential medical and dental treatment due to a lack of capacity to provide consent. For this purpose, the legislation sets out who is responsible for a person lacking capacity to give consent to medical and dental treatment ...
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- Review of appointment
  
  An appointment of an enduring guardian can be reviewed by NCAT's Guardianship Division or the Supreme Court under ss 6J and 6L respectively. Under s 6J, NCAT can suspend an appointment of enduring guardian that is under review.
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- Revocation and resignation
  
  Revoking an appointment of enduring guardian
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- Suspension of appointment
  
  Any guardianship order made by NCAT or the Supreme Court under Part 3 temporarily suspends any appointment of an enduring guardian for the duration of that order. Under s 6J, NCAT can suspend an appointment of enduring guardianship that is under review.
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- Tribunal
  
  The tribunal referred to in the Guardianship Act 1987 is the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT). Together with the Supreme Court, NCAT has jurisdiction over guardianship matters under the Act and can review appointments of enduring guardians.
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- Witnessing an enduring guardian appointment
  
  Eligible witness An appointment of an enduring guardian can only be witnessed by an eligible witness as defined in s 5 of the Guardianship Act 1987.
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Powers of attorney
- About powers of attorney generally
  
  Granting someone the power to act as an attorney means that person can step into the shoes of the grantor, known as the donor or principal, and act on their behalf. This means the attorney can do anything on the principal's behalf that the principal can do legally, as long as the attorney acts in ...
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- Appointing an attorney
  
  Any person aged 18 years or older with the mental capacity to make relevant decisions can be appointed as an attorney. A person can nominate more than one attorney. The power of attorney document can allow those attorneys to act jointly or severally.
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- Capacity
  
  A testator must have testamentary capacity when the will is executed for it to be valid. There is a presumption of capacity. If it is alleged that the testator lacked capacity, the onus is on the person making the allegation to support it, usually with medical evidence.
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- Corporations
  
  The Powers of Attorney Act 2003 applies only to a natural person, not to a corporation. Under the Corporations Act 2001, however, a company can be appointed as an attorney or appoint an attorney.
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- Death
  
  See also Executor.
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- Delegation of power of attorney
  
  A specified attorney cannot appoint a substitute attorney, sub-attorney, or delegate unless the power of attorney document expressly permits it: s 45 of the Powers of Attorney Act 2003. A substitute attorney appointed by the principal can act during a vacancy in the office of the specified ...
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- Directions
  
  No prescribed wording applies for the directions that may be given in a power of attorney document, nor any restrictions on those directions. However, a power of attorney must expressly state the authority for the attorney to give gifts, or confer benefits on the attorney or third parties: ...
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- Directors
  
  A company director with a general power of attorney for another director under the Powers of Attorney Act 2003, cannot exercise the principal's directorial duties. The principal cannot delegate their power. However, a company's constitution may specifically empower:
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- Duties and powers of an attorney
  
  An attorney's duties and powers are set out in Parts 2 and 6 of the Powers of Attorney Act 2003. An attorney's duties are not affected under the common law or equity, unless the Act provides otherwise: s 7. Under s 9(1), a general power of attorney confers on the attorney:
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- Execution of power of attorney
  
  Execution of a power of attorney can be witnessed by anyone aged 18 years and over who is not a party to the document. An enduring power of attorney must be witnessed by a prescribed witness, which includes a registrar of a local court or an Australian legal practitioner: s 19(2). A ...
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- Executor’s attorney
- Incommunicate
  
  A person is considered incommunicate if they cannot understand communications or express their intentions about their property or affairs, for example, because they have a physical or mental disability, or if they cannot be located or contacted: s 4(1) of the Powers of Attorney Act 2003. ...
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- Insolvency
  
  For insolvent estates, the deceased's real and personal estate is administered under Part 1 of the Third Schedule of the Probate and Administration Act 1898, subject to any relevant provisions of the Bankruptcy Act 1966 (Cth): s 46C(1) of the Probate and Administration Act 1898.
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- Interstate enduring powers of attorney
  
  A valid enduring power of attorney executed in another state or territory is recognised in New South Wales, but only confers powers on an attorney in New South Wales that can be granted under an enduring power of attorney made in New South Wales: s 25 of the Powers of Attorney Act 2003. An ...
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- Irrevocable power of attorney
  
  Under s 15 of the Powers of Attorney Act 2003, a power of attorney can be expressed to be irrevocable as long as it is given for valuable consideration. Irrevocable powers of attorney are typically found in loan, franchise, or other commercial contract documents. These documents often require ...
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- Joint attorneys
  
  Disputes Joint attorneys must collaborate and make joint decisions collectively. Provision can be made in the document for one of the attorneys to have a casting vote or a third party to be consulted in the event of a joint decision deadlock.
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- Legislation
  
  Applicable legislation includes:
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- Limitations
  
  Limitations or directions do not need to be included in a power of attorney. There are no specific restrictions or prescribed wording for limitations or directions included in a power of attorney document.
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- Liquidator
  
  A liquidator can appoint an attorney to act on their behalf in managing the company. See, for example, Australian Guarantee Corporation Ltd v Registrar of Titles (1992) 7 ACSR 577.
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- Overseas powers of attorney
  
  An ordinary power of attorney made overseas can be relied on in New South Wales if it:
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- Prescribed power of attorney
- Registration of power of attorney
- Review of power of attorney
  
  A power of attorney can be reviewed by the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) or by the Supreme Court: s 26 of the Power of Attorney Act 2003. The Act deals with these reviews in Division 4 of Part 5. The principal, an attorney under the ...
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- Revocation of power of attorney
  
  A power of attorney:
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- Suspension
  
  A power of attorney is not terminated if the principal's estate is later managed under the NSW Trustee and Guardian Act 2009: s 50(1) of the Powers of Attorney Act 2003. The power is simply suspended while it is a managed estate: s 50(3). However, suspension is subject to the express ...
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- Vacancy in the office of attorney
  
  Under s 5 of the Powers of Attorney Act 2003, a vacancy in the office of an attorney occurs on revocation or renunciation of the power, or the death, bankruptcy, or incapacitation of the attorney. A vacancy results in termination of the power of attorney, unless more than one attorney remains ...
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- Witnessing execution of power of attorney
  
  Who can be a witness For a general power of attorney, the Powers of Attorney Act 2003 does not specify who can witness the principal's execution of the document. Accordingly, any person can be a witness. However, to provide evidence of the signing and to avoid conflicts of interest, the witness ...
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Wills
- About wills generally
- Administration of deceased’s estate
- Administrator
  
  The definition of an administrator in both s 3 of the Probate and Administration Act 1898 and s 3 of the Succession Act 2006 is identical. It includes the NSW Trustee and Guardian and anyone who is granted administration. The term administratrix, previously used to refer to a female ...
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- Alteration
  
  Alterations to a will are permitted by s 14 of the Succession Act 2006. By their nature, alterations are presumed to have been made after the will's execution. Under s 14(1), alterations are only effective if made by a court order under ss 16 or 18, or are executed in the same way as ...
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- Beneficiaries
  
  Beneficiary liable for a debt to the estate If a beneficiary is personally liable for a debt owed to the estate, then the rule in Cherry v Boultbee (1839) 4 Myl & Cr 442; 41 ER 771 applies. The beneficiary is not entitled to participate in the distribution of the estate without paying their ...
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- Burials, cremations, and funerals
  
  Deceased's wishes Testators often include instructions in their will about funeral arrangements or organ donation. However, these instructions are not legally binding on the executor.
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- Codicil
  
  A codicil is a brief supplementary document used to make minor changes or adjustments to an existing will. For a codicil to be legally binding, it must be signed and witnessed in the same manner as a will. It should be kept with the original will.
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- Construction of a will
  
  When a will is unclear, a court may be required to construct the testator's intended meaning to give effect to the will. Part 2.3 of the Succession Act 2006 provides general rules about construction of wills, including particular provisions in wills, which all apply subject to any contrary ...
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- Contracts to make wills
  
  See Mutual wills.
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- Court-authorised wills
  
  Any person may apply to the Supreme Court for an order to authorise the making, alteration, or revocation of a will on behalf of a person lacking testamentary capacity, including a minor: s 18 of the Succession Act 2006. Wills authorised by the court are known as statutory wills.
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- Dispensing with formal requirements
- Disposition of estate property
  
  Disposition of land A general disposition of land in a will includes leasehold land, regardless of whether the testator also owns freehold land, unless the will states otherwise: s 36. A lease agreement may override this provision.
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- Divorce or annulment of marriage
  
  Under s 13(1) and (2), divorce or annulment of a marriage by a testator who made a will during the marriage revokes:
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- Execution of a will
  
  Section 6 of the Succession Act 2006 provides for how a will is to be executed, namely:
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- Executor
  
  An executor is a person named in a will who is responsible for carrying out the testator's instructions regarding the distribution of their assets after their death, and ensuring those assets are protected and preserved until final distribution. A company cannot be an executor, except the NSW ...
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- Extrinsic evidence to construe a will
  
  When the language in a will is meaningless, or ambiguous either on its face or in the context of the surrounding circumstances, the court can admit extrinsic evidence, including evidence of the executor's intentions, in any proceedings to interpret the will: s 32(1) of the Succession Act 2006. ...
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- Foreign wills
  
  See International wills.
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- Formal requirements of a valid will
  
  See Execution of a will.
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- Homemade wills
  
  The Supreme Court considered a homemade will in Jones v Robinson & Ors [2019] NSWSC 932, particularly the question of its proper interpretation where ambiguity existed in the will. Sacker J noted at paragraph 47:
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- Incorporation by reference
  
  A document can be incorporated into a will by simply being referenced. However, as stated by McDonald J in Fast and Ors v Rockman and Ors [2015] VSC 337 at paragraph 9:
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- Informal wills
  
  The court can grant probate on an informal will under s 8 of the Succession Act 2006. Under s 8, the court can dispense with the formal requirements for making, altering, or revoking a will if satisfied that:
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- International wills
  
  An international will is a will recognised as valid in all countries that are signatories to the Convention Providing a Uniform Law on the Form of an International Will signed in Washington on 26 October 1973. The Convention harmonises and simplifies the requirements for proof of ...
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- Legislation
  
  Applicable legislation includes:
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- Living wills
  
  The term living will is not legally recognised in Australia. The purpose of a living will, however, is to clearly outline an individual's desired medical treatment should they become incapable of giving informed consent.
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- Making a will
- Marriage and domestic relationships
  
  A will is revoked by marriage: s 12(1) of the Succession Act 2006. Despite this, marriage does not revoke dispositions to or appointments as executor, trustee, advisory trustee, or guardian of the spouse to whom the testator was married at the time of their death: s 12(2).
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- Minimum age of will maker
  
  Under s 5 of the Succession Act 2006, a will made by anyone aged under 18, is not valid. However, the following exceptions apply:
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- Multiple original copies of a will
- Multiple wills
  
  Theoretically, it is possible to have more than one will. This may be the case for a testator with assets in 2 or more different jurisdictions, typically Australia and another country. Only the local will in each jurisdiction needs to be proved. In New South Wales, however, having multiple ...
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- Mutual wills
  
  Mutual wills originated in common law and can be traced back to the 18th century. Today, mutual wills are executed under contractual agreements and enforced by courts under equitable principles or contract law. Mutual wills involve 2 parties, usually spouses, entering into an agreement to ...
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- Promises to make a will or a bequest
- Property that can be dealt with in a will
  
  Under s 4(1) of the Succession Act 2006, a testator can dispose of by will any property they are entitled to, that is, any property they personally own, at the time of their death. Section 4(3) extends this definition to estate property that a testator's legal personal representative ...
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- Rectification of a will
  
  Under s 27of the Succession Act 2006, the court can rectify a will to reflect a testator's intentions if satisfied the will fails to do so due to a clerical error or fails to give effect to the testator's instructions. An application to rectify a will must be lodged within 12 months of ...
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- Revival of a revoked will
  
  A revoked will is revived either by re-executing the will, or by executing a will that shows an intention to revive all or part of the revoked will: s 15(1). When part of a will is revoked and the balance is revoked later, the revival only restores the most recently revoked part of the will: ...
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- Revocation
  
  Sections 11–13 deal with revocation of a will. A will is revoked by:
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- Solicitors
  
  Appointment of a particular firm A clause in a will requiring an executor to appoint a particular law firm to act on the estate's behalf is not binding: Foster v Elsley (1881-2) 19 Ch D 518.
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- Statutory wills
  
  See Court-authorised wills.
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- Superannuation
  
  Superannuation does not form part of an estate and generally cannot be dealt with in a will. A member of a superannuation fund must make a binding nomination or binding nominations to direct the fund's trustee to deal with the proceeds of the member's superannuation death benefit on their death. ...
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- Survivorship
  
  When a joint tenant dies, their interest in the land automatically passes to the surviving joint tenant or tenants. This is known as the doctrine of survivorship. On the death of a person registered as a joint proprietor with any other person, the surviving joint proprietor will be registered as ...
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- Suspicious circumstances
  
  When a will is executed under apparently suspicious circumstances, the person propounding the will must prove it was not executed in suspicious circumstances otherwise probate will not be granted. In Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197, the Court of Appeal considered suspicious ...
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- Testamentary capacity
  
  Assessing capacity A lawyer taking instructions for a will must be satisfied that the will maker has the capacity to make a will.
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- Testamentary discretionary trusts
  
  A testamentary discretionary trust is a discretionary trust created by a will that comes into existence on the death of the testator. A testator setting up this type of trust in their will:
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- Witnesses
  
  Formal requirements Under s 6 of the Succession Act 2006, a will must be signed by at least 2 witnesses, both of whom must:
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101 Subpoena Answers
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
- 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
- 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
  - 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
  - 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
  - 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. Almost anything can ...
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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
  - Civil
    
    Notice of motion
    
    Example - Notice of motion - to set aside a subpoena
    
    Affidavit
  - Family
    
    Subpoena - Family Law
    
    Affidavit - Family law and child support proceedings
C. Acting for a client who issues a subpoena
- 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
  - Civil
    
    Subpoena to produce with subpoena notice and declaration
    
    Subpoena to attend to give evidence
    
    Subpoena to attend to give evidence and to produce with subpoena notice and declaration
  - Criminal
    
    Subpoena for production
    
    Subpoena for production and to give evidence
    
    Subpoena to give evidence
  - Federal Circuit and Family Court of Australia
    
    Subpoena - Family Law
    
    Affidavit - Family law and child support proceedings
    
    Annexure sheet
  - Federal Court
    
    Subpoena to give evidence - Link to Federal Court of Australia
    
    Subpoena to produce documents
    
    Subpoena to give evidence and produce documents
D. Production and access
- 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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Family Provision Claims

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

Overview

Precedents in this publication include:

4 Matter Plans Included

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