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Family Provision Claims

SA

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

3 Matter Plans

Overview

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

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

Also included is 101 Subpoena Answers, which is a useful reference guide.

Precedents in this publication include:

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

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Family Provision Claims (SA) - Acting for the Applicant
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 101 Subpoena Answers
    • Item icon 101 Costs Answers
    • Item icon Further information
  • Item icon Overview and limitation periods
    Overview Eligible persons can bring a claim on a deceased estate under Part 6 of the Succession Act 2023, seeking that adequate provision be made out of the estate for their proper maintenance, education or advancement in life if inadequate provision has been made for them in the will or if ...

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  • Item icon Summary of the process
    The usual steps in a family provision claim matter are:

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Family provision claims - Acting for the applicant
    • Item icon To do list - Family provision claims - Acting for the applicant
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Family provision claims - Acting for the applicant
    • Item icon Conflict of interest check
    • Item icon Initial letter to client with costs agreement
    • Item icon Letter to client enclosing costs agreement and discussing mediation
    • Item icon Costs agreement - SA
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Item icon Taking instructions and advising on the claim
      The client will be a person who had a familial or personal relationship with the deceased and, has either received no provision from the deceased’s estate or what they consider to be inadequate provision. In rare cases, the client may be someone who has already received an order in their favour in ...

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    • Item icon Eligible persons
      Under s 115(1), the following persons are entitled to claim under the Act:

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    • Item icon The estate and the distributed estate
      In making provision for a claimant, the assets available are confined to the deceased’s estate. However, this may depend on the timing of the claim and distributions already made by the estate.

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    • Item icon Assessing the merits of the claim
      To assess the viability of the client’s prospective claim and advise of its merits, it is necessary to analyse the claim having detailed regard to the matters the court has the discretion to consider under the Act. There is substantial case law on family provision claims. The general position is ...

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    • Item icon When the court can make an order
      Section 116 provides:

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    • Item icon The two-stage process
      The court’s discretion to make an order is governed by the two-stage process. The High Court described this two-stage process in Singer v Berghouse [1994] HCA 40 where Mason CJ, Deane and McHugh JJ dealing with the NSW legislation held that once eligibility is decided, the court is required to ...

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    • Item icon Considering competing interests
      Competing interests of a surviving spouse When a client is competing for provision with a surviving spouse, as a general rule, in the case of a lengthy marriage or de facto relationship, a testator must ensure, so far as the assets of the estate allow, that the surviving spouse is secure in their ...

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    • Item icon Form of provision that may be awarded
      The court has discretion as to the way provision may be awarded, for example as:

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    • Item icon Letter to client with initial advice
    • Item icon Notice to the executor or administrator of the estate
      Although a claimant can theoretically still claim out of assets of the estate already distributed, if a claim has been brought within time, it is better to ensure that assets do not leave the estate or, if they do, that the executor or administrator can be held accountable. Therefore, notice of the ...

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    • Item icon Initial letter to estate or their solicitor
    • Item icon Initial letter to executor or administrator
    • Item icon Initial letter to beneficiaries
    • Item icon CourtSA - Access wills and estates documents online
    • Item icon Challenging the validity of a will
      A challenge to a will is different from a family provision claim. Challenging a will raises the question of whether the will was validly made and the testator had capacity. Such a challenge requires the claimant to have standing either by being a person named in the will, or a person entitled under ...

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    • Folder icon Library of Uniform Civil Rules (UCR) forms
      • Folder icon Pre-Action
        • Item icon Cost estimate
        • Item icon Final notice
        • Item icon Pre-action meeting report
      • Folder icon Originating Process
        • Item icon Affidavit
        • Item icon Affidavit - in support of application for admission
        • Item icon Affidavit of personal injury particulars
        • Item icon Consolidated pleading
        • Item icon Election - moratorium on steps
        • Item icon Exhibit front sheet to affidavit or statutory declaration
        • Item icon Statement of claim standalone
        • Item icon Statement of claim uploaded with claim
        • Item icon Statement of claim uploaded with claim - Building Work Contractors Act
        • Item icon Statement of claim uploaded with claim - Retail and Commercial Leases Act
        • Item icon Statement of facts issues and contentions standalone
        • Item icon Statement of facts issues and contentions uploaded with originating application for review
      • Folder icon Representation and Address for Service
        • Item icon Authorisation
        • Item icon Deauthorisation
        • Item icon Guardian Certificate
        • Item icon Notice of cessation of acting
      • Folder icon Service and Notices
        • Item icon Affidavit of proof of personal service on an individual by sheriffs officer
        • Item icon Affidavit of proof of service
        • Item icon Notice to party served - outside Australia
        • Item icon Notice to potential claimant
      • Folder icon Responses
        • Item icon Defence - standalone
        • Item icon Defence details - uploaded with defence shell
        • Item icon Notice of objection
        • Item icon Reply
        • Item icon Response
      • Folder icon Secondary Process
        • Item icon Statement of cross claim
        • Item icon Statement of cross claim - uploaded with cross claim
      • Folder icon Progression
        • Item icon Application to registrar
        • Item icon Application to registrar - Remission or reduction of court fees
        • Item icon Certificate of readiness for trial
        • Item icon Consent to order
        • Item icon Draft order
        • Item icon Interlocutory Application
        • Item icon List of documents
        • Item icon List of documents consolidated - Simple electronic protocol
        • Item icon List of documents - Simple electronic protocol
        • Item icon Notice of payment
        • Item icon Order
        • Item icon Request for payment out of court
        • Item icon Written submissions
      • Folder icon Evidence
        • Item icon Subpoena to attend to give evidence (Mag Court)
        • Item icon Subpoena to attend to give evidence (Sup and Dist Courts)
        • Item icon Subpoena to produce documents (Sup and Dist Courts)
      • Folder icon Finalisation
        • Item icon Notice of and consent to discontinuance
        • Item icon Draft judgment
        • Item icon Formal offer
        • Item icon Notice of discontinuance
        • Item icon Response to formal offer
        • Item icon Withdrawal of formal offer
      • Folder icon Enforcement
        • Item icon Application and consent to set aside default judgment and discontinue
        • Item icon Application to enforce a judgment
        • Item icon Consent to order for payment
        • Item icon Final garnishee order
        • Item icon Interim garnishee order
        • Item icon Notice of claim to money subject to execution
        • Item icon Notice of objection to issue of warrant of possession
        • Item icon Questionnaire
      • Folder icon Appeal
        • Item icon Appeal grounds
        • Item icon Cross appeal grounds
        • Item icon Cross review grounds
        • Item icon Information sheet - setting down appeal or case stated for hearing
        • Item icon Review grounds
        • Item icon Written submissions
      • Folder icon Miscellaneous
        • Item icon Generic form
      • Folder icon Corporation
        • Item icon Affidavit accompany statutory demand
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. Settling it early
    • Item icon When to negotiate
      Even before proceedings are commenced, attempts can be made to resolve the claim. In other states, the executor or administrator is the party that actively defends proceedings. However, in South Australia, if the executor or administrator’s only interest in the estate is in that role and they do ...

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    • Item icon Tips for effective negotiation
      Disclose the applicant’s case A genuine and effective way to negotiate for an applicant in a family provision case is to prepare and serve on the anticipated respondents a supporting affidavit, setting out the detail of the applicant’s claim.

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    • Item icon Calderbank offer by applicant
    • Item icon When settlement is reached
      Claims can be settled in several ways, each with different tax implications. Bequests under a will are not subject to tax. Family provision orders made by a court take effect as though they were a bequest under the will, so no tax is payable. Claims settled prior to the commencement of proceedings ...

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    • Item icon Deed of settlement of a family provision claim
    • Item icon Deed of family arrangement
    • Item icon Deed of family arrangement - Life tenant and remainderman
    • Folder icon Library of common form orders
      • Item icon Order for provision out of estate
      • Item icon Order with declaration as to relationship
    • Item icon Letter to client reporting on settlement by court order
    • Item icon Letter to client enclosing settlement deed
    • Item icon Authority to settle and receive
    • Item icon Direction to pay and authority to receive
  • Folder icon C. Going to court
    • Item icon Going to court
      Proceedings must be commenced within 6 months from the date of grant of probate.

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    • Item icon CourtSA
      The CourtSA online portal is used for the filing of documents and case management. Practitioners need to register to use it. Registration for the online web portal is a simple process, via the CourtSA website. The website also has demonstrations and further details on how to use the online portal. ...

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    • Item icon Obtaining a grant of probate or letters of administration for the purpose of the proceedings
    • Item icon Brief to counsel - Family provision claim
    • Item icon Example content - Brief to counsel - Family provision claim
    • Item icon The originating application and supporting affidavit
      Rules 254.10–16 set out the specific procedures to be followed in relation to family provision actions in the court. Consider and comply with Chapter 8 of the Rules also, except where there is anything in rules 254.10–16 to the contrary. Proceedings are commenced under r 254.11 by filing ...

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    • Item icon Originating applications – CourtSA
    • Item icon Originating application - probate ex parte
    • Item icon Originating application - probate inter partes
    • Item icon Example content - Originating application - Extension of time
    • Item icon Affidavit
    • Item icon Clause - Affidavit in support of originating application
    • Item icon Affidavit to lead to citation to accept or refuse probate
    • Item icon Affidavit to lead to citation to accept or refuse administration
    • Item icon Affidavit - citation - to accept or refuse double probate
    • Item icon Exhibit front sheet to affidavit or statutory declaration
    • Item icon Order
    • Item icon Written submissions
    • Item icon Letter to client enclosing draft affidavits
    • Item icon Letter to client enclosing affidavits for signing
    • Item icon Multilingual notice - Originating application multiple languages – CourtSA
    • Item icon Interlocutory application – CourtSA
    • Item icon Interlocutory application
    • Item icon Example content - Interlocutory application for joinder by a potential claimant
    • Item icon Letter serving originating process on the estate
    • Item icon Letter to executor serving originating process personally
    • Item icon Letter serving originating process personally on interested party
    • Item icon Letter to client after filing claim
    • Item icon Letter serving notice on potential claimants
    • Item icon Notice to potential claimant
    • Item icon Letter to process server
    • Item icon Affidavit of proof of service
    • Item icon Clause - Affidavit of proof of service
    • Folder icon If required - Substituted service
      • Item icon Interlocutory application
      • Item icon Interlocutory application
      • Item icon Example content - Application - Substituted service
      • Item icon Affidavit
      • Item icon Clause - Affidavit by solicitor in support of substituted service
    • Item icon Response and counterclaims
      A response to a claim is filed pursuant to r 83.1. If there is an allegation by the estate of misappropriation or mesne profits by the applicant, this cannot be brought as a counterclaim or cross-action to the family provision action but needs to be brought by separate proceedings and then ...

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    • Item icon The role of executors as respondent
      The default position is that, unless there is a court order to the contrary, an administrator is excused from taking any steps in the action other than the filing of affidavits under r 254.13(1) and (2): r 254.13(3). If an executor or administrator has no personal interest in the outcome ...

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    • Item icon Parties under a legal incapacity
      If a party is under a legal incapacity which means they are not capable of managing their participation in a proceeding, they may not carry on a family provision action except through their litigation guardian: r 23.8. An eligible person seeking to act as a litigation guardian must file a ...

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    • Folder icon If required - Litigation guardian
      • Item icon Affidavit
      • Item icon Guardian Certificate
      • Item icon Interlocutory application
    • Item icon First directions hearing date
      On the first hearing date matters will be listed before a judge or associate justice of the Supreme Court typically on Level 5 of the Sir Samuel Way Building, Victoria Square, Adelaide. The parties are expected to have conferred in advance for the purpose of providing the court with the ...

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    • Item icon Letter to client after first directions hearing
    • Item icon Letter to client enclosing estate affidavits
    • Item icon Letter to witness enclosing affidavit for signing
    • Folder icon Pretrial procedures
      • Item icon Pretrial procedures
      • Item icon Formal offer
      • Item icon Clause - Formal offer - Applicant
      • Item icon Example content - Applicant's answers to respondent's interrogatories
      • Item icon Example mediation position paper
      • Item icon Valuations and value of the estate
        The court does not generally require valuations of real property for the purpose of the proceedings and certainly does not want expert competing valuation evidence. Market appraisals are sufficient, including appraisals of the cost of purchasing a suitable home for the applicant, if that is the ...

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      • Item icon Letter to real estate agent seeking market appraisal of real property
      • Item icon Interlocutory application
      • Item icon List of documents consolidated - Simple electronic protocol
      • Item icon Subpoena to attend to give evidence (Sup, Dist and ERD Courts)
      • Item icon Subpoena to produce documents (Sup, Dist and ERD Courts)
      • Item icon Response to formal offer
      • Item icon Withdrawal of formal offer
    • Folder icon Trial procedures
      • Item icon Trial
        Unless being dealt with under r 254.15 summary determination, a family provision trial will proceed like any other. It is reasonably rare for these matters to proceed to trial as they are often resolved through negotiation and settlement. Evidence at trial is given in the form of affidavits.

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      • Item icon Summary determination
        Consideration should be given as to whether the case is suitable for summary determination although, in practice, this is uncommon. Rule 254.15 Summary determination provides that:

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      • Item icon Example tender book index
      • Item icon Written submissions
      • Item icon Clause - Outline of submissions for the applicant
      • Item icon Legal costs
        Under s 119(8) of the Act, the court may make costs orders as it considers just. The court’s usual discretion as to costs and the rules applicable to civil matters under s 40 of the Supreme Court Act 1935 and Chapter 16 of the Uniform Civil Rules 2020 apply. The general rule in most ...

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      • Item icon Procedure following an order in favour of the applicant
        Section 119 of the Succession Act 2023 relevantly provides:

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      • Folder icon Library of common form orders
        • Item icon Order for provision out of estate
        • Item icon Order with declaration as to relationship
      • Item icon Appeals
        An appeal can be made within 21 days per r 214.1 by filing a notice of appeal in accordance with r 214.2. Appeals against final judgments of associate justices and single judges are to the Court of Appeal: r 212.3(1). Counsel’s advice should prudently be sought before lodging ...

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      • Item icon Notice of appeal
      • Item icon Appeal grounds
      • Item icon Review grounds
      • Item icon Cross appeal grounds
      • Item icon Cross review grounds
      • Item icon Multilingual Notice - Notice of Appeal or Review Multiple Languages
  • Folder icon D. Finalising the matter
    • Item icon Letter to client enclosing settlement deed
    • Item icon Authority to settle and receive
    • Item icon Direction to pay and authority to receive
    • Item icon Letter to client finalising the matter - Successful application
    • Item icon Letter to client finalising the matter - Unsuccessful application
    • Item icon Example invoice incorporating notification of client's rights - SA
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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