Family Provision Claims

4 Matter Plans Included

ALERTS - Nil
Full Commentary - Family Provision Claims (VIC) - 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 (VIC)
- 101 Subpoena Answers
- 101 Costs Answers
- Further information
Overview and limitation periods

Until the introduction of testators’ family maintenance legislation in New Zealand at the start of the twentieth century, and its speedy adoption in Victoria in 1906 and then throughout the Australian states and ultimately in England, there was no way by which a disappointed dependent could claim ...
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
- Conflict of interest check
- Initial letter to client with costs agreement
- Costs agreement - VIC
- 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
- Preliminary issues
  
  The client The client will usually be the executor or administrator of an estate and often instructions will already have been received to act for the estate by the time any family provision claim is notified or served.
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- Taking initial instructions and advising on the claim
  
  Initial instructions To properly advise the client it is necessary to take full and detailed instructions.
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Eligible persons
  
  From 1 January 2015 the following claimants are eligible persons under s 90 Administration and Probate Act 1958:
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- When the court can make orders and the factors considered
  
  When the court can make an order Section 91(2) Administration and Probate Act 1958 provides that a court must not make an order unless satisfied:
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- If required - Brief to counsel
  - Brief to counsel - Family provision claim
  - Example content - Brief to counsel - Family provision claim
- Letter to estate with initial advice
- Communicating with the plaintiff
  
  The claimant is entitled to obtain a copy of the will and the inventory of property from the court once probate has been granted. Note that the application is a matter of record. If a potential claimant, or a solicitor on their behalf, seeks this from you as estate solicitor, instructions are still ...
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- Letter to plaintiff's solicitor in response to their initial letter
- General deeds, agreements, execution clauses, and statutory declarations
  - Deeds and Agreements
  - Deeds
    
    Deed for general use
    
    Deed of guarantee
    
    Deed of release
    
    General deed of indemnity
    
    Deed of assignment of agreement
    
    Deed of gift
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of deed - All parties
    
    Confidentiality for terms of deed - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Heads of agreement
    
    Non-disclosure agreement - Formal
    
    Non-disclosure agreement - Informal
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of agreement - All parties
    
    Confidentiality for terms of agreement - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Execution clauses
    
    Library of execution clauses for agreements
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
    
    Individual - No witness
    
    Library of execution clauses for deeds
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
  - Statutory declarations
    
    Commonwealth statutory declaration
    
    Statutory declaration - blank - ACT
    
    Statutory declaration - blank - NSW
    
    Statutory declaration - blank - VIC
    
    Statutory declaration - blank - QLD
    
    Statutory declaration - blank - TAS
    
    Statutory declaration - blank - SA
    
    Statutory declaration - blank - WA
    
    Statutory declaration - blank - NT
    
    Standard annexure note for documents
  - Standard annexure note for documents
B. Settling the matter
- When to negotiate
  
  The executor is under a duty to compromise legitimate claims. The question often comes down to how much the estate can get away with paying to avert the costs of having the court determine the question. Mediation is compulsory in these cases once proceedings are commenced. The court will require ...
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- Mediation
  
  Mediation is compulsory after proceedings are commenced but can be conducted by agreement at the parties’ expense – often at the estate’s expense – before proceedings are commenced. Usually, a matter will not be set down for hearing unless it has already been to mediation before a private mediator, ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Tips for effective negotiation
  
  Understand the plaintiff’s case The only genuine and effective way to negotiate with a plaintiff in a family provision case is after having received their affidavit or statement position which sets out the detail of the claim, being all of the material required in paragraph 7.5 of Practice Note SC ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Calderbank letter
- Costs disclosure before settlement
  
  See 101 Costs Answers for more information on costs disclosure generally. In litigation matters, the lawyer’s disclosure obligation extends to giving the client a reasonable estimate of the costs that will be payable if the matter is settled, including any costs of another party that are likely to ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
- Mechanics of settlement
  
  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 codicil and therefore any provision is a bequest under the will, so no tax is payable. Claims settled ...
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- Letter to beneficiary affected by settlement of claim
- Deed of settlement of a claim
- Deed of family arrangement
- Deed of family arrangement - Life tenant and remainderman
- Minutes of Consent Orders pursuant to Rule 59 06
- Clause - Consent orders for provision
- Offer of compromise
- Example content - Offer of compromise
- Letter reporting to estate on settlement
C. Going to court
- Going to court
  
  If court approval of a settlement is required, or if negotiations with the plaintiff have failed, or if the client, after receiving advice on the plaintiff’s prospects, declines to settle, the plaintiff will likely commence proceedings seeking orders for provision – and usually for costs to be paid ...
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- Choice of court
  
  This commentary focuses on procedure in the Supreme Court. Filing in the County Court can be quicker and cheaper. Proceedings commenced in the County Court may be referred to the Supreme Court if that jurisdiction is more appropriate.
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Commercial Division Standard Orders Booklet – County Court Victoria
- If required - Brief to counsel
  - Brief to counsel - Family provision claim
  - Example content - Brief to counsel - Family provision claim
- Overview and limitation periods
  
  Until the introduction of testators’ family maintenance legislation in New Zealand at the start of the twentieth century, and its speedy adoption in Victoria in 1906 and then throughout the Australian states and ultimately in England, there was no way by which a disappointed dependent could claim ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Certifications
  - Certification of prior overarching obligations certification
  - Proper Basis Certification
- Notice of application
  
  The plaintiff must put the estate on notice that they intend to make application to the court. Once notice is given, the estate cannot be distributed without the executor or administrator being personally liable. There is no specific form of notice. It must be in writing and must be signed either ...
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- Notice of appearance
- Letter to plaintiff's solicitor regarding choice of court
- If required - Litigation guardian
  - Legal incapacity
  - Consent to act as litigation guardian
  - Solicitor's certificate - Appointment of litigation guardian
  - Order approving compromise of claim of minor (Supreme Court)
  - Order approving compromise of claim of minor (County Court)
  - Minutes of Orders for Part IV/TFM Application for Approval of Compromise
- Grant of probate or letters of administration for the purpose of proceedings
  
  Family maintenance provision applications are made following the grant of probate or letters of administration – and the time limit for claims runs from the date of grant, not the date of death. There can sometimes be a stand-off where the executor is reluctant to apply, or various people might be ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Time for bringing the claim
  
  Proceedings must be commenced within six months after the date of the grant of probate The time for making the application may be extended for a further period as the court thinks necessary, however the application must be made prior to the final distribution, and extensions are very difficult ...
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- If required - Affidavit of executor OR administrator of the estate
  - Clause - Affidavit of executor OR administrator of the estate
  - Affidavit
- Letter to client enclosing draft affidavits
- Letter to client enclosing affidavits for signing
- Letter to witness enclosing affidavit for signing
- First directions hearing date
  
  On the first hearing date metropolitan matters will be listed before an associate judge in the courts on the ground floor at 436 Lonsdale Street, Melbourne. The procedure in regional areas may vary and should be clarified with the court in advance where required. By 2 pm on the Friday ...
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- Minutes of Part IV/TFM Orders - First Directions Hearing
- Letter to client after first directions hearing
- Letter to potential additional defendants
- Plaintiff’s evidence
  
  The plaintiff’s affidavit is the key piece of evidence for the claimant. The affidavit, or position statement if the estate is valued at less than $750,000, should contain:
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- If required - Gathering and exchanging evidence
  - Discovery
    
    See Originating process in the Supreme Court Civil Litigation (VIC) guides for further commentary generally on the distinction between proceedings commenced by writ and originating motion. Discovery is not available as a matter of course in family provision cases as they are commenced by ...
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  - Subpoena
    
    A subpoena to produce documents may be issued and served on a third party. The plaintiff should always be provided with copies of any subpoenas when they are issued. Subpoenaed documents can be of great significance in the hearing of a family provision claim, particularly when acting for the ...
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  - Notice to produce
    
    Relevant documents held not by third parties but by the plaintiff themselves can be obtained by issuing a Notice to Produce. Such documents might support or assist with challenges to the veracity of statements in the plaintiff’s affidavit. A Notice to Produce only requires production of documents ...
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  - Notice to produce
  - Affidavit
  - Subpoenas
    
    Subpoena both to attend to give evidence and to produce
    
    Subpoena both to attend to give evidence and to produce (County Court)
    
    Subpoena for production to the prothonotary
    
    Subpoena for production to registrar (County Court)
    
    Subpoena to attend to give evidence
    
    Subpoena to produce
    
    Subpoena to produce (County Court)
- Evidence to be filed by the estate
  
  Order 16 Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 governs the process. The usual orders allow the plaintiff one to two months to file affidavits in support of the claim and then allow the executor to file answering documents in the next month or so. Normally the ...
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- Certificate identifying exhibit
- Evidence of the value of real property
  
  The court does not require formal, sworn 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 plaintiff, if that is the ...
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- Letter to REA seeking market appraisal for comparison to plaintiff’s market appraisal
- Letter to REA seeking market appraisal of estate property
- Second directions hearing
  
  If the matter does not settle at mediation, the mediator will file a certificate to that effect and the matter will be listed again for final directions. At this second hearing, parties may seek leave to file additional evidence, if required, possibly prompted by the mediation or discussions. ...
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- Example content - Defendant's position statement for hearing
- Chronology
- Outline of submissions
- Costs disclosure before settlement
  
  See 101 Costs Answers for more information on costs disclosure generally. In litigation matters, the lawyer’s disclosure obligation extends to giving the client a reasonable estimate of the costs that will be payable if the matter is settled, including any costs of another party that are likely to ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Costs orders
  
  The usual costs orders for an unsuccessful party in civil litigation will apply, with the likely result that an unsuccessful applicant will not receive their costs from the estate and may even be required to pay the estate’s costs. No provisions in the Act specifically deal with costs. Practice ...
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- Procedure following an order in favour of the plaintiff
  
  Rule 16.10 Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 provides for what happens after an order is made in favour of a successful plaintiff:
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- Appeals
  
  In the Supreme Court an appeal can be made within 28 days against the decision of a single judge to the Court of Appeal under s 14B Supreme Court Act 1986 (Vic) and Order 64 Supreme Court (General Civil Procedure) Rules 2015 by filing an application for leave. The same time frame ...
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- Application for leave to appeal
D. Finalising the matter
- Finalising the matter
  
  The estate solicitor frequently has a lot of work to do after a family provision claim is determined, but that is likely to be under the scope of the presumably separate retainer to act on the administration of the estate. The claim file will often need to await the sale of assets and the ...
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- Letter to estate finalising the matter
- Example invoice incorporating notification of client's rights - VIC
- Closing the file
- File closing checklist
Comments and suggestions for By Lawyers

ALERTS - Nil
Full Commentary - Family Provision Claims (VIC) - 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 (VIC)
- 101 Subpoena Answers
- 101 Costs Answers
- Further information
Overview and limitation periods

Until the introduction of testators’ family maintenance legislation in New Zealand at the start of the twentieth century, and its speedy adoption in Victoria in 1906, and then throughout the Australian states and ultimately England, there was no way by which a disappointed dependant could claim ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
A. Getting the matter underway
- File cover sheet - Family provision claims - Acting for the plaintiff
- To do list - Family provision claims - Acting for the plaintiff
- First steps
- Client details and verifying identity
- Retainer instructions - Family provision claims - Acting for the plaintiff
- Conflict of interest check
- Initial letter to client with costs agreement
- Costs agreement - VIC
- 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
- Taking instructions and advising on the claim
  
  The client will be a person who has a close family or other relationship with the deceased and has received no provision, or what they consider to be inadequate provision, from the deceased’s estate under a will or under the laws of intestacy. In Victoria the laws of intestacy exclude non-family ...
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- Challenging the validity of a will
  
  A challenge to a will is a different issue to a family provision claim. Challenging a will questions its validity, on the basis of the testator’s capacity, for example. Such a challenge requires the claimant to have standing, as a person named in the will, or a person entitled under intestacy laws ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Eligible persons
  
  From 1 January 2015 the following claimants are 'eligible persons' under s 90 Administration and Probate Act 1958:
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- When the court can make orders and the factors considered
  
  When the court can make an order Section 91(2) Administration and Probate Act 1958 provides that a court must not make an order unless satisfied:
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- If required - Brief to counsel
  - Brief to counsel - Family provision claim
  - Example content - Brief to counsel - Family provision claim
- Letter to potential claimant
- Letter to client with initial advice
- Affidavit of the plaintiff
  
  The plaintiff’s affidavit is the key piece of evidence for the claimant. The affidavit, or position statement if the estate is valued at less than $750,000, should contain:
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Affidavit
- Example content - Affidavit of the plaintiff (Estate greater than $750K)
- Letter to client enclosing draft affidavit
- Letter to client enclosing affidavit for signing
- Position statement (Estate less than $750K)
- Example content - Affidavit of plaintiff's solicitor re costs
- Communicating with the estate
  
  The client may not know who the executor or administrator is, or if the estate has a solicitor. If the client cannot find this out, then a search can be made at the Probate Office of the Supreme Court to see if a grant of probate is pending or has been made. These lists are available online. See ...
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- Supreme Court Vic Probate Registers - Application, Caveat, Wills Indices
- Initial letter to estate solicitor
- Initial letter to executor OR administrator
- General deeds, agreements, execution clauses, and statutory declarations
  - Deeds and Agreements
  - Deeds
    
    Deed for general use
    
    Deed of guarantee
    
    Deed of release
    
    General deed of indemnity
    
    Deed of assignment of agreement
    
    Deed of gift
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of deed - All parties
    
    Confidentiality for terms of deed - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Heads of agreement
    
    Non-disclosure agreement - Formal
    
    Non-disclosure agreement - Informal
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of agreement - All parties
    
    Confidentiality for terms of agreement - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Execution clauses
    
    Library of execution clauses for agreements
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
    
    Individual - No witness
    
    Library of execution clauses for deeds
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
  - Statutory declarations
    
    Commonwealth statutory declaration
    
    Statutory declaration - blank - ACT
    
    Statutory declaration - blank - NSW
    
    Statutory declaration - blank - VIC
    
    Statutory declaration - blank - QLD
    
    Statutory declaration - blank - TAS
    
    Statutory declaration - blank - SA
    
    Statutory declaration - blank - WA
    
    Statutory declaration - blank - NT
    
    Standard annexure note for documents
  - Standard annexure note for documents
B. Settling the matter
- When to negotiate
  
  Mediation is compulsory in these cases once proceedings are commenced. The court will require the parties to attend mediation. However, even before proceedings are commenced attempts can be made to resolve the claim. There is a positive obligation on the executor or administrator of an estate to ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Mediation
  
  Mediation is virtually compulsory after proceedings are commenced but can be conducted by agreement at the parties’ expense – often at the estate’s expense – before proceedings are commenced. Usually, a matter will not be set down for hearing unless it has already been to mediation before a private ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Tips for effective negotiation
  
  Disclose the plaintiff’s case The only genuine and effective way to negotiate for a plaintiff in a family provision case is to prepare and serve on the estate’s representative an affidavit or statement position of the plaintiff, setting out the detail of the plaintiff’s claim – that is, all of the ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Calderbank letter
- Costs disclosure before settlement
  
  See 101 Costs Answers for more information on costs disclosure generally. In litigation matters, the lawyer’s disclosure obligation extends to giving the client a reasonable estimate of the costs that will be payable if the matter is settled, including any costs of another party that are likely to ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
- Mechanics of settlement
  
  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 ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Letter to client enclosing settlement deed
- Deed of settlement of a claim
- Deed of family arrangement
- Deed of family arrangement - Life tenant and remainderman
- Authority to settle and receive
- Direction to pay and authority to receive
- Clause - Consent orders for provision
- Letter reporting to plaintiff on settlement
C. Going to court
- Choice of court
  
  This commentary focuses on procedure in the Supreme Court. Filing in the County Court can be quicker and cheaper. Proceedings commenced in the County Court may be referred to the Supreme Court if that jurisdiction is more appropriate.
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Common Law Division Standard Orders Booklet – County Court Victoria
- If required - Brief to counsel
  - Brief to counsel - Family provision claim
  - Example content - Brief to counsel - Family provision claim
  - AI Prompt for brief to counsel for contested application for probate claim
- Time for bringing the claim
  
  Proceedings must be commenced within six months after the date of the grant of probate or of letters of administration: s 99 Administration and Probate Act 1958. The time for making the application may be extended for a further period as the court thinks necessary, however the application must ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- If required - Litigation guardian
  - Parties under a legal incapacity
    
    Where the plaintiff is a person under a legal incapacity they may not carry on proceedings except by their litigation guardian: r 15.02(1) and (2) of Supreme Court (General Civil Procedure) Rules 2015. Unless the court orders otherwise, the litigation guardian of a person under a legal disability ...
    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 litigation guardian
  - Solicitor's certificate - Appointment of litigation guardian
  - Order approving compromise of claim of minor (Supreme Court)
  - Order approving compromise of claim of minor (County Court)
  - Minutes of Orders for Part IV/TFM Application for Approval of Compromise
- Grant of probate or letters of administration for the purpose of the proceedings
  
  Family provision applications are made following the grant of probate or letters of administration. The time limit for claims runs from the date of grant, not the date of death. There can sometimes be a stand-off if the executor is reluctant to apply, or various people might be able to make an ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Commencing the claim
  
  Commence proceedings within six months of the date of grant of probate by filing an originating motion seeking provision under Part IV Administration and Probate Act 1958. Where this period has passed the plaintiff will need to seek an extension: see s 99 of the Administration and Probate ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Overview and limitation periods
  
  Until the introduction of testators’ family maintenance legislation in New Zealand at the start of the twentieth century, and its speedy adoption in Victoria in 1906, and then throughout the Australian states and ultimately England, there was no way by which a disappointed dependant could claim ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Certifications
  - Certification of prior overarching obligations certification
  - Proper Basis Certification
- Originating motion between parties where commenced under Rule 45.05
- Originating motion between parties
- Clause - Originating motion
- AI Prompt for originating motion in a testator family maintenance claim
- Letter serving originating motion on solicitor for the estate
- Letter serving originating motion personally on executor
- Letter to process server
- Affidavit
- Clause - Affidavit of service - Originating process
- Letter to client after filing claim
- Following commencement – Prior to first directions hearing
  
  Pursuant to r 16.06 Supreme Court (Miscellaneous Civil Proceedings) Rules 2018, the plaintiff should issue a summons for the first directions hearing within seven days after the time for an appearance to be filed. Paragraph 7.3 of Practice Note SC CL 7 requires that, prior to the ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Letter to estate solicitor before first directions hearing
- First directions hearing date
  
  On the first hearing date metropolitan matters will be listed before an associate judge in the courts on the ground floor at 436 Lonsdale Street, Melbourne. Procedure in regional areas may vary and should be clarified with the court in advance where required. By 2 pm on the Friday prior ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Minutes of Part IV/TFM Orders - First Directions Hearing
- Letter to client after first directions hearing
- Letter to client enclosing estate affidavits
- Letter to potential additional defendants
- Evidence of the value of real property
  
  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 plaintiff, if that is the ...
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- Letter to real estate agent seeking market appraisal of real property
- If required - Gathering and exchanging evidence
  - Discovery
    
    See Originating process in the Supreme Court Civil Litigation (VIC) guides for further commentary generally on the distinction between proceedings commenced by writ and originating motion. Discovery is not available as a matter of course in family provision cases, as they are commenced by ...
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  - Subpoena
    
    A subpoena may be served on a third party to provide documents at trial, or to the Prothonotary before trial, or to give evidence. A subpoena may be served on a party as a substitute for discovery. A subpoena may be set aside as an abuse of process if it is directed to obtain documents, discovery ...
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  - Notice to produce
    
    One way of dealing with challenges to the veracity of statements in affidavits is to serve a notice to produce on the relevant party, requiring production at trial of documents referred to in their affidavit. Where such documents are not referred to, serve a notice to produce listed documents. See ...
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  - Notice to produce
  - Affidavit
  - Subpoenas
    
    Subpoena both to attend to give evidence and to produce
    
    Subpoena both to attend to give evidence and to produce (County Court)
    
    Subpoena for production to the prothonotary
    
    Subpoena for production to registrar (County Court)
    
    Subpoena to attend to give evidence
    
    Subpoena to produce
    
    Subpoena to produce (County Court)
- Second directions hearing
  
  If the matter does not settle at mediation, the mediator will file a certificate to that effect and the matter will be listed again for final directions. At this second hearing, parties may seek leave to file additional evidence, prompted by the mediation or discussions. Directions may be given to ...
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- Letter to witness enclosing affidavit for signing
- Example content - Plaintiff's position statement for hearing
- AI Prompt for Plaintiff position statement in a testator family maintenance claim
- Chronology
- Outline of submissions
- AI Prompt for outline of submissions in a testator family maintenance claim
- Costs disclosure before settlement
  
  See 101 Costs Answers for more information on costs disclosure generally. In litigation matters, the lawyer’s disclosure obligation extends to giving the client a reasonable estimate of the costs that will be payable if the matter is settled, including any costs of another party that are likely to ...
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- Costs orders
  
  The usual costs orders for an unsuccessful party in civil litigation will apply, with the likely result that an unsuccessful applicant will not receive their costs from the estate and may even be required to pay the estate’s costs. No provisions in the Act specifically deal with costs. provides ...
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- Procedure following an order in favour of the plaintiff
  
  Rule 16.10 Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 provides for what happens after an order is made in favour of a successful plaintiff:
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- Appeals
  
  In the Supreme Court an appeal can be made within 28 days against the decision of a single judge to the Court of Appeal under s 14B Supreme Court Act 1986 (Vic) and Order 64 Supreme Court (General Civil Procedure) Rules 2015 by filing an application for leave. The same time frame ...
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- Application for leave to appeal
D. Finalising the matter
- Letter to client enclosing settlement deed
- Authority to settle and receive
- Direction to pay and authority to receive
- Letter to plaintiff finalising the matter
- Letter to client finalising the matter - Successful application
- Letter to client finalising the matter - No payment
- Example invoice incorporating notification of client's rights - VIC
- Closing the file
- File closing checklist
Comments and suggestions for By Lawyers

101 Succession Answers (VIC)
Estates
- Accounts
  
  Duty to keep accounts The personal representative has a duty to maintain records or accounts of how the estate is administered, in accordance with their undertaking to the court when applying for a grant: rr 2.04(2)(c) and 4.04(2)(c) of the Supreme Court (Administration and Probate) Rules ...
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- Ademption of gifts
  
  The testamentary gift of an asset is adeemed if the asset no longer exists on the death of the testator. If after making the will the testator sells the asset the question arises whether the proceeds of the sale should go to the beneficiary to satisfy the bequest.
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- Administration
  
  Administration is defined in s 5 of the Administration and Probate Act 1958 as follows:
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- Administration bond or guarantee
  
  Section 57 of the Administration and Probate Act 1958 provides that the court or the registrar may require a surety to the value of the estate, against loss as a consequence of a breach by the administrator of their duties. The section does not apply to State Trustees and certain others: ...
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- Administrator
  
  An administrator is defined in s 5(1) of the Administration and Probate Act 1958 as a person to whom administration is granted. Between the date of death and the date of a grant of letters of administration, the estate of an intestate deceased vests in State Trustees: s 19.
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- Application for a grant of probate or letters of administration
  
  Any need to apply A grant is not always required when there is a valid will, or when there is no will, or there is a will but no appointed executor or when the will does not deal with the whole of the estate. There is no legislative requirement to apply for a grant in every case.
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- Application to revoke a grant of probate or letters of administration
  
  Order 11 of the Supreme Court (Administration and Probate) Rules 2023 deals with an application for revocation. Common grounds for revocation include the discovery of a later will, lack of testamentary capacity, and fraud in obtaining the original grant. In O'Brien v McCormick [2005] NSWSC 619 ...
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- Assets and liabilities of the estate
  
  Beneficiary in possession of estate property It is the duty of the personal representative to get in the estate, 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 and gifts
  
  A bequest is a gift by will. A specific bequest is a gift of specified property such as a watch.
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- Burials, cremations, and funerals
  
  A deceased’s wishes It is quite common for a will to include directions concerning the disposal of the deceased’s remains and their wishes for their funeral service. Such directions and wishes do not bind the personal representative.
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- Capacity
  
  A testator must have testamentary capacity at the time the will is executed in order to be valid. If it is alleged that the testator did not in fact have testamentary capacity, then evidence of the incapacity is usually provided by medical reports.
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- Caveats
  
  The person lodging a caveat must provide an address for service, and grounds for the objection. Rule 8.06(3.1) of the Supreme Court (Administration and Probate) Rules 2023, provides that the caveator must give particulars of any fact or matter raised in the grounds of objection. Strict time ...
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- Chain of representation
  
  When a sole executor dies before completing administration, that executor's own executor will become the executor of both estates. This is a common law position called the chain of representation.
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- Codicils
  
  A codicil is a document that amends, rather than replaces, a previously executed will. The will and codicil need to be read together to determine who are the executors and the terms of the will.
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- Co-executors – Authority to act
  
  Co-executors may be allocated specific roles in the will, with one executor to perform specific functions and another to attend to all other matters. An example of an executor with specific functions is a literary executor for administration of the copyright and royalty rights of the estate.
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- Commission – Executors and administrators
  
  The payment of commission may arise in several ways, including by way of provision in the will, by agreement by all fully informed beneficiaries who have capacity, and by an order of the court. Section 65 of the Administration and Probate Act 1958 allows an executor, administrator, or trustee ...
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- Construction of the will
  
  When a will is unclear a court may be required to construct the will maker’s intended meaning to give effect to the will. The court must have regard to will construction principles as well as to the ordinary meanings of the words used. Part 4 of the Wills Act 1997 deals with general rules ...
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- Contested will matters
  
  An interested person can oppose an application for a grant of probate or letters of administration by seeking to impugn the will which is the subject of the application. There are five standard grounds for challenging a will:
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- Court – Power over wills and estates
  
  The Supreme Court has jurisdiction, both by virtue of the legislation and as part of its inherent jurisdiction, over wills and estates. The County Court may hear certain matters. For small estates, s 71 of the Administration and Probate Act 1958 provides that a personal representative may ...
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- Death
  
  Causes of action survive death The general rule is that death does not affect the legal rights and obligations of the deceased.
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- Distribution
  
  Early distribution Although an estate can be distributed before six months has elapsed since the date of the grant, the personal representative will lose the protections included in the Administration and Probate Act 1958 and risk being held personally liable for any claims against the estate.
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- Duties – Administrators and executors
  
  An administrator or executor is obliged to disclose to the court all assets and liabilities of the deceased. This is done by way of the inventory of assets and liabilities which is annexed to the affidavit in support of the application for a grant of probate or letters of administration: s 28 ...
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- Executors
  
  An executor is a person named in a will who is responsible for carrying out the instructions of the testator, regarding the distribution of their assets after their death. The executor's primary responsibilities include locating and inventorying the deceased person's assets, paying debts and taxes, ...
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- Grants
  
  There are three main types of grant of representation:
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- Hotchpot
  
  A hotchpot or adjustment clause is used to take into account inter vivos gifts or loans, usually to the deceased’s children, so that when combined with the gifts to those children under the will, they all end up with the same benefit. In Re Tennant Mortlock v Hawker [1942] HCA 3 Dixon J said:
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- Informal wills
  
  The court can grant administration of an informal will. Section 9 of the Wills Act 1997 provides that the court may dispense with the usual requirements for the making of a will, altering a will, or revoking a will, if the court is satisfied that the document purports to state the testamentary ...
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- Injunction
  
  A dissatisfied beneficiary or claimant on an estate may seek an injunction from the Supreme Court to restrain the legal personal representative from dealing with estate property and particularly from selling real property. As with any applicant for injunctive relief, the applicant must give the ...
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- Insolvency
  
  Section 39 of the Administration and Probate Act 1958 provides for administration and the payment of debts, if the estate is insufficient to pay its debts and liabilities in full, and is not being administered under the Bankruptcy Act 1966 (Cth). See Morris v Smoel [2014] VSC 31 for an ...
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- Intermeddling
  
  An executor intermeddles, when dealing with estate assets before a formal grant is made. While there is nothing inherently wrong with this and it is not covered by legislation but is a long recognised common law concept.
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- Intestacy
  
  A person dies intestate if they die without having made a valid will. Their assets are distributed according to the laws of inheritance which usually follow a set pattern of distribution to the deceased person's family members, starting with their spouse and children, and then extending to other ...
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- Life estate or life tenancy
  
  A life tenancy, or life estate, is a proprietary interest in real property, capable of being registered on title. In the context of a trust creating a life tenancy, the party who holds the property is known as the trustee and the beneficiary is known as the life tenant. In addition to these two ...
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- Joint mortgage responsibilities
  
  Section 33(4) of the Transfer of Land Act 1958 provides that:
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- Legislation
  
  Applicable legislation includes:
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- Letters of administration
  
  See Applications for a grant of probate or letters of administration.
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- Litigation
  
  The most common type of claim against an estate is a family provision claim. Another is a challenge to a will where an interested person opposes an application for grant of probate or letters of administration of the impugned will. For a detailed exposition of the considerations regarding such ...
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- Missing will
  
  It is possible to obtain a grant for administration based only on a copy of a missing will: see In the Will of Valerie Eve Robson (deceased) [2020] QSC 52 and Williamson v Pay [2020] QSC 66. There are no specific guidance notes on the Supreme Court’s website, but generally:
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- Multiple wills
  
  Theoretically, it is possible to have more than one will. This may be the case where the testator has assets in two or more different jurisdictions, typically Australia and another country. It is only necessary to prove the local will in each jurisdiction.
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- Passing over of an executor
  
  If an executor needs to be relieved of their duties before probate has been granted, they can be passed over. There are several reasons an executor may be passed over including ill health, they reside out of the jurisdiction, or they may be of bad character. To pass over an executor, a beneficiary ...
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- Personal liability of a personal representative
  
  Once a personal representative has a grant, assuming one is required, then they may distribute in accordance with the provisions of the will or in accordance with the intestacy provisions in the Administration and Probate Act 1958. This is subject to any claims brought against the estate within ...
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- Rectification of a will
  
  Section 31 of the Wills Act 1997 provides the court may make an order to rectify a will if the court is satisfied that the will does not carry out the testator’s intentions either due to a clerical error, or because the will does not give effect to the testator’s instructions. Applications for ...
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- Renunciation
  
  There is no compulsion on someone to accept the role as executor. The named executor, or one of multiple named executors, may renounce their office before any application for a grant is made.
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- Replacement or removal of an executor
  
  An application may be made for the removal or discharge of a personal representative, and the substituted appointment of a trustee company or other person as administrator: s 34 of the Administration and Probate Act 1958. This section can be used by one executor to seek the removal of a ...
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- Resignation of executor
  
  An executor may resign or renounce the office before applying for a grant. However, once probate has been granted an executor cannot resign but may apply to the court for discharge or removal: s 34 of the Administration and Probate Act 1958.
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- Superannuation
  
  Superannuation is not personal property. Unless there is a valid binding death benefit nomination, the superannuation trustee will use their discretion, in accordance with the terms of the trust deed and subject to superannuation law, to decide whether to pay the death benefit to the dependents or ...
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- Small estates
  
  Often a grant in a small estate is unnecessary. Most banks and other institutions will release assets without the need for a grant, although they will usually seek an indemnity from the recipient of the proceeds.
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- Survivorship
  
  On the death of a joint tenant the interest in the land of that joint tenant ceases and the other joint tenants automatically own the whole of the land. This is known as the doctrine of survivorship. For this reason, property which the deceased owned as joint tenant does not form part of the estate ...
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- Terminating lease after death of sole renter
  
  The estate of the deceased renter will be responsible for the normal clean-up and be liable for the rent until the termination of the residential rental agreement, subject to the provisions of s 91N of the Residential Tenancies Act 1997. Termination may be made by either giving written notice ...
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- The doctrine of renvoi
  
  Kong v Yan [2021] SASC 82 provides that the doctrine of renvoi requires a court of one jurisdiction to apply the law of a foreign country to the resolution of a legal dispute in that court’s jurisdiction. While there is some argument as to the precise scope of the doctrine of renvoi in Australian ...
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- Who can inspect the will of a deceased person
  
  Section 50 of the Wills Act 1997 lists the people who are entitled to see the will, including a revoked will or a purported will, after the testator has died:
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Family provision claims
- Generally
  
  The starting point for making wills is the idea of freedom of testamentary intention, that is, the idea that a person should be able to leave their estate to whomever they choose, and to exclude as a beneficiary whomever they choose. In Banks v Goodfellow (1870) LR 5 QB 549, at 564, Cockburn CJ ...
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- Adequate provision
  
  Pursuant to Part IV of the Administration and Probate Act 1958 an order can only be made if the court is satisfied that:
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- Adult children including step-children
- Affidavits
  
  Evidence in family provision cases is by affidavit, which must comply with the relevant Practice Notes. For example:
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- Apply for a grant
  
  If a grant for probate or administration is not obtained within six weeks of the date of the death of the testator, any interested party may apply to the court for an order calling on the executor, or any person having possession of the will, to show cause why that person should not bring the ...
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- Capacity
  
  A testator must have testamentary capacity at the time the will is executed in order to be valid. If it is alleged that the testator did not in fact have testamentary capacity, then evidence of the incapacity is usually provided by medical reports.
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- Claim
  
  An application to the court for a family provision order must be made within six months after the date of the grant of probate or of letters of administration: s 99 of the Administration and Probate Act 1958. That is, unless sufficient cause is shown for the court to order otherwise. To ...
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- Compromise
  
  Often an executor will seek to compromise a claim in the interests of avoiding court proceedings, and possibly preserving relationships within the family. However, there are a number of relevant issues the executor needs to consider, which were discussed by the court in Re Finnie; Petrovska v ...
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- Costs
  
  There is no longer a general rule that an unsuccessful applicant will have their costs paid from the estate. Rather, it is assumed that the usual costs orders for an unsuccessful party in civil litigation will apply.
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- Crisp orders
  
  A Crisp order allows the applicant to use the value of specific estate assets to secure appropriate accommodation and to meet their ongoing maintenance needs. In Thompson v Thompson [2015] VSC 706, the effect of a Crisp order was described as:
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- Dependency
  
  Several eligible person categories must prove dependency on the deceased. In Spata v Tumino [2018] NSWCA 17 the Court of Appeal analysed at [53]–[81], the requirements for dependency in detail, and found that the adult stepson of the deceased was not dependent on her.
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- Dependency and member of the same household
  
  The concepts of dependency, and member of the same household, in the context of ss 90(k) and 91(4)(d) of the Administration and Probate Act 1958 was discussed in Dunn v Perpetual Trustee Company Ltd [2020] VSC 611. This was considered more recently in Re Eddison; Kildair v Eddison & ...
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- Discovery
  
  Whether discovery of all relevant information can be made will depend on the facts. For a case relating to an unsuccessful application for discovery of documents see Re Fitzgerald; Voss-Lassetter v Piacun [2020] VSC 784.
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- Eligible persons
  
  Section 90 of the Administration and Probate Act 1958 defines an eligible person as:
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- Estrangement
  
  The Macquarie Dictionary defines estrangement as:
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- Extension of time
  
  Section 99(1) of the Administration and Probate Act 1958 provides that an application to the court for a family provision order must be made within six months after the date of the grant of probate of the will or of letters of administration. Section 99(2) provides that the court may ...
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- Family law orders
  
  Regarding the interplay between family provision claims and previous family law property orders, see Dark v Dark [2016] NSWSC 1223. This case dealt with a claim by a widow who was separated from the deceased at the time of his death. A financial agreement had been made under s 90C of the ...
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- Grandchildren
  
  Although a grandchild is included in the definition of eligible person in the Administration and Probate Act 1958 Act, one of the requirements in this category is consideration of the degree to which they were wholly or partly dependent on the deceased at the time of the deceased’s death. In ...
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- Intestacy
  
  A person dies intestate if they die without having made a valid will. Their assets are distributed according to the laws of inheritance which usually follow a set pattern of distribution to the deceased person's family members, starting with their spouse and children, and then extending to other ...
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- Legislation
  
  Applicable legislation includes:
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- Matters to be considered by the court
  
  In Re Dodson; Dodson v Dodson [2019] VSC 833 McMillan J referred to the relevant provisions of the Administration and Probate Act 1958 which the court will consider in a family provision claim:
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- Notional estate
  
  A notional estate claim is an application to the court to regain assets that were distributed in the three years before the death of the testator. The aim of the claim is to prevent someone from trying to avoid a family provision order by giving away their assets before they die.
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- Orders
  
  The court may only make orders for provision out of an estate if the court is satisfied that the claimant is an eligible person for whom inadequate provision has been made in the will, or on intestacy, and there are factors warranting the making of an order.
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- Effect of orders
  
  Section 97 of the Administration and Probate Act 1958 provides that:
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- Other orders
  
  The orders or directions the court may make in a family provision claim are not necessarily restricted to family provision orders. All solicitors will be familiar with the maxim that parties must come to court with clean hands.
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- Partners – Domestic and caring
  
  These are specific terms, as referred to in the definition of eligible person in s 90 of the Administration and Probate Act 1958, and are included in s 3(1):
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- Release of rights
  
  The Administration and Probate Act 1958 does not specifically provide for a person to grant a release of their family provision rights or seek approval of the court in doing so. However, by way of analogy with other jurisdictions, this may fall within the inherent jurisdiction of the court. Such ...
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- Spouse
  
  The Administration and Probate Act 1958 includes a number of relevant definitions:
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- Variation and revocation
  
  On the application of the personal representative or any person beneficially entitled to or interested in any part of the estate, the court may rescind or alter any family provision order: s 97(5) of the Administration and Probate Act 1958. Notice of the application is to be served on all ...
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Guardianship and administration
- Appointments – Involuntary
  
  The Guardianship and Administration Act 2019 provides for various types of orders that can be sought through application to the Victorian Civil and Administrative Tribunal (VCAT) including:
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- Appointments – Voluntary
  
  Up until September 2015 voluntary appointments of enduring guardianship were made under the Guardianship and Administration Act 1986. This changed when the Powers of Attorney Act 2014 came into effect. Appointments already in existence continued to be effective.
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- Jurisdiction
  
  The Victorian Civil and Administrative Tribunal (VCAT) has jurisdiction in relation to the Powers of Attorney Act 2014 and the Guardianship and Administration Act 2019. Orders may be sought from the Supreme Court in certain instances.
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- Legislation
  
  Applicable legislation includes:
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- McKenzie friend
  
  A McKenzie Friend will assist an unrepresented person in court. Although they are more common in family law and guardianship matters, they may be permitted in any court where an unrepresented person needs assistance to ensure fairness. Leave of the court is required. A McKenzie Friend provides the ...
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Medical treatment, planning, and decisions
- Generally
  
  The starting point for making wills is the idea of freedom of testamentary intention, that is, the idea that a person should be able to leave their estate to whomever they choose, and to exclude as a beneficiary whomever they choose. In Banks v Goodfellow (1870) LR 5 QB 549, at 564, Cockburn CJ ...
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- Advance care directive
  
  The person making an advance care directive may be an adult or a child. While we refer to them as a principal for ease of reading, this term is not used in the Medical Treatment Planning and Decisions Act 2016. An advance care directive sets out a principal’s binding instructions or preferences and ...
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- Appointment of medical treatment decision maker
  
  The appointment of a medical treatment decision maker allows a principal to formally appoint a person to make medical treatment decisions on their behalf. The person appointing the medical treatment decision maker is not referred to as a principal in the Act however we have retained that ...
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- Appointment of a support person
  
  Any person with decision-making capacity, including a child, can appoint another person, including a child, to be their support person. Only one support person can be appointed at a time: s 31. The role of a support person is set out in s 32(1):
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- Capacity
  
  A testator must have testamentary capacity at the time the will is executed in order to be valid. If it is alleged that the testator did not in fact have testamentary capacity, then evidence of the incapacity is usually provided by medical reports.
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- Legislation
  
  Applicable legislation includes:
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- Registration
  
  Advance care directives and the appointment of medical treatment decision makers and support persons can be uploaded by the principal onto the State Government’s MyHealth Record portal. If the principal would prefer not to do this, they can provide a certified copy to their appointees, in case ...
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- Revocation and resignation
  
  Resignation A support person or a medical treatment decision maker may formally resign, but only if certain requirements have been complied with: ss 39 and 40 of the Medical Treatment Planning and Decisions Act 2016.
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- Witnesses
  
  Witnessing an advance care directive, the appointment of a medical treatment decision maker, or a support person, requires the relevant form to be executed by the principal, or by an independent adult in the presence of the principal at their direction, in the presence of two witnesses: ss 28, ...
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Powers of attorney
- Generally
  
  The starting point for making wills is the idea of freedom of testamentary intention, that is, the idea that a person should be able to leave their estate to whomever they choose, and to exclude as a beneficiary whomever they choose. In Banks v Goodfellow (1870) LR 5 QB 549, at 564, Cockburn CJ ...
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- Attorney
  
  Certain preconditions for appointment by an enduring power of attorney are set out in s 28 of the Powers of Attorney Act 2014:
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- Capacity
  
  A testator must have testamentary capacity at the time the will is executed in order to be valid. If it is alleged that the testator did not in fact have testamentary capacity, then evidence of the incapacity is usually provided by medical reports.
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- Corporations
  
  The Powers of Attorney Act 2014 applies to natural persons, not corporations.
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- Death
  
  Causes of action survive death The general rule is that death does not affect the legal rights and obligations of the deceased.
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- Delegation
  
  Enduring power of attorney Section 25 of the Powers of Attorney Act 2014 provides an enduring power of attorney does not have the effect of empowering the attorney to delegate a power under the enduring power of attorney.
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- Directions
  
  There is no prescribed wording for, nor restriction on, the directions that may be given in a power of attorney document. For example, the circumstances in which the power commences.
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- Directors
  
  A general power of attorney by a director, that is an appointment under the Act, does not enable the attorney to exercise the principal’s directorial duties. The principal is not empowered to make such a delegation. The company constitution may contain a specific power:
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- Duties and powers
  
  The duties of an attorney are set out in the enduring power of attorney section of the Powers of Attorney Act 2014: ss 63–70. None of the duties listed in s 63 are to be taken to affect any duty an attorney has at common law. There are certain principles that attorneys must abide by when ...
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- Execution
  
  For an enduring power of attorney the principal’s signature must be witnessed by two persons, one of whom must be authorised to witness affidavits: see s 19 of the Oaths and Affirmations Act 2018, or a medical practitioner. See s 11 of the Powers of Attorney Act 2014 for execution of a ...
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- Executor
  
  The personal representative of an estate generally cannot delegate the functions of their office and therefore cannot appoint an attorney. However, if the executor has never resided in Victoria or is absent or about to depart from Victoria, they may delegate the execution and exercise of their ...
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- Incommunicate
  
  This term relates to the situation when a person cannot communicate about their property or their affairs or cannot be contacted. In Cox v Goldcrest Developments (NSW) Pty Ltd [2000] NSWSC 763 the court held that being on the high seas and unable to be contacted did not constitute being ...
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- Insolvency
  
  Section 39 of the Administration and Probate Act 1958 provides for administration and the payment of debts, if the estate is insufficient to pay its debts and liabilities in full, and is not being administered under the Bankruptcy Act 1966 (Cth). See Morris v Smoel [2014] VSC 31 for an ...
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- Instructions
  
  The enduring power of attorney may be confined to personal matters only, financial matters only, or to both, or to specific matters: s 22(2) of the Powers of Attorney Act 1958. The powers may include conditions and instructions as to how the power is to be exercised: s 23(2)(a).
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- Interstate powers
  
  Section 138 provides that an enduring power of attorney made in another state or territory is recognised in Victoria. The interstate power of attorney must be valid under the laws of the state or territory in which it is made, but it cannot operate to confer power on an attorney in Victoria ...
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- Irrevocable power of attorney
  
  The critical factor for an irrevocable power of attorney is that it can only be given for valuable consideration. Such appointments are usually found within loan, franchise or other commercial contract documents, which provide for the lender, franchisor or contracting party to do certain things in ...
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- Joint attorneys
  
  Disputes Joint attorneys need to be able to work together and make joint decisions. VCAT may be consulted in the event of a deadlock.
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- Jurisdiction
  
  The Victorian Civil and Administrative Tribunal (VCAT) has jurisdiction in relation to the Powers of Attorney Act 2014 and the Guardianship and Administration Act 2019. Orders may be sought from the Supreme Court in certain instances.
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- Legislation
  
  Applicable legislation includes:
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- Limitations
  
  There is no limit or prescription on the limitations or directions that can be included in a power of attorney document and no magic words to create them. Any limitations and directions are best kept as simple and unambiguous as possible, for example:
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- Liquidator
  
  A liquidator may appoint an attorney to act on behalf of the liquidator in the administration of the company: Australian Guarantee Corporation Ltd v Registrar of Titles (1992) VicSC 208.
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- Power of attorney – Enduring
  
  An enduring power of attorney is distinct from a general power of attorney and continues to have effect even if the principal loses mental capacity after the appointment. The power can be confined to personal matters only, or financial matters only, or both, or to any matters specified in the ...
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- Power of attorney – General
  
  A general power of attorney that is in, or to the effect of, the form in the Schedule to the Powers of Attorney Act 2014 creates a general non-enduring power of attorney for the purpose of the Act: s 7. It is the simplest type of power, but it ceases to be enforceable if the principal loses ...
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- Registration
  
  Advance care directives and the appointment of medical treatment decision makers and support persons can be uploaded by the principal onto the State Government’s MyHealth Record portal. If the principal would prefer not to do this, they can provide a certified copy to their appointees, in case ...
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- Revocation and resignation
  
  Resignation A support person or a medical treatment decision maker may formally resign, but only if certain requirements have been complied with: ss 39 and 40 of the Medical Treatment Planning and Decisions Act 2016.
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Supportive attorney
- Attorney
  
  Certain preconditions for appointment by an enduring power of attorney are set out in s 28 of the Powers of Attorney Act 2014:
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- Capacity
  
  A testator must have testamentary capacity at the time the will is executed in order to be valid. If it is alleged that the testator did not in fact have testamentary capacity, then evidence of the incapacity is usually provided by medical reports.
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- Death
  
  Causes of action survive death The general rule is that death does not affect the legal rights and obligations of the deceased.
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- Duties and powers
  
  The duties of an attorney are set out in the enduring power of attorney section of the Powers of Attorney Act 2014: ss 63–70. None of the duties listed in s 63 are to be taken to affect any duty an attorney has at common law. There are certain principles that attorneys must abide by when ...
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- Execution
  
  For an enduring power of attorney the principal’s signature must be witnessed by two persons, one of whom must be authorised to witness affidavits: see s 19 of the Oaths and Affirmations Act 2018, or a medical practitioner. See s 11 of the Powers of Attorney Act 2014 for execution of a ...
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- Revocation and resignation
  
  Resignation A support person or a medical treatment decision maker may formally resign, but only if certain requirements have been complied with: ss 39 and 40 of the Medical Treatment Planning and Decisions Act 2016.
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- Supported decision
  
  A supported decision is a decision the supportive attorney is authorised to support the principal in making: s 84 of the Powers of Attorney Act 2014.
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Wills
- Generally
  
  The starting point for making wills is the idea of freedom of testamentary intention, that is, the idea that a person should be able to leave their estate to whomever they choose, and to exclude as a beneficiary whomever they choose. In Banks v Goodfellow (1870) LR 5 QB 549, at 564, Cockburn CJ ...
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- Ademption
  
  Ademption occurs when personal or real estate property is gifted under a will but is no longer in the will maker's estate when they die. The case of Dunn v Perpetual Trustee Company Ltd [2020] VSC 611 demonstrates the unintended consequences which may arise when a devised property has been sold by ...
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- Alterations
  
  Alterations to a will are permitted by s 15 of the Wills Act 1997. However they are only effective if they are executed in the same way as a will under s 7.
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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
  
  A deceased’s wishes It is quite common for a will to include directions concerning the disposal of the deceased’s remains and their wishes for their funeral service. Such directions and wishes do not bind the personal representative.
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- Codicils
  
  A codicil is a document that amends, rather than replaces, a previously executed will. The will and codicil need to be read together to determine who are the executors and the terms of the will.
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- Construction of will
  
  When a will is unclear a court may be required to construct the will maker’s intended meaning to give effect to the will. The court must have regard to will construction principles as well as to the ordinary meanings of words. Part 4 of the Wills Act 1997 deals with general rules about the ...
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- Court made wills
  
  Any person may apply, on behalf of someone lacking testamentary capacity, including a minor, to the Supreme Court to make, alter or revoke, a will: ss 20 and 21 of the Wills Act 1997. Such wills are often known as statutory wills.
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- Dispensing with requirements for execution, alteration, or revocation of a will
  
  Section 9 of the Wills Act 1997 provides that the court may dispense with the usual requirements for making, altering or revoking a will, if the court is satisfied that the document purports to state the testamentary intentions of the deceased and that the deceased intended for the document to ...
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- Disposition of estate property
  
  Disposition of land A general disposition of land in a will includes leasehold land, whether or not the testator also owns freehold land, but this does not apply if a contrary intention appears, whether in the will or elsewhere: s 40 of the Wills Act 1997.
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- Divorce or annulment of marriage
  
  If the testator, having made a will while married, then divorces or has the marriage annulled, any appointment of the former spouse as an executor, trustee, or a power of appointment exercisable by or in favour of the spouse, in the will is revoked: see s 14. However, the appointment of the ...
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- Execution
  
  For an enduring power of attorney the principal’s signature must be witnessed by two persons, one of whom must be authorised to witness affidavits: see s 19 of the Oaths and Affirmations Act 2018, or a medical practitioner. See s 11 of the Powers of Attorney Act 2014 for execution of a ...
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- Executor
  
  The personal representative of an estate generally cannot delegate the functions of their office and therefore cannot appoint an attorney. However, if the executor has never resided in Victoria or is absent or about to depart from Victoria, they may delegate the execution and exercise of their ...
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- Extrinsic evidence to construe will
  
  When the meaning in a will is unclear or ambiguous the court will construe the will. In such proceedings evidence, including evidence of the testator’s intention, is admissible to assist in the interpretation of the language used in the will: s 36 of the Wills Act 1997.
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- Foreign wills
  
  If a testator owns assets in a foreign country, they have the option of creating a foreign will that will be legally processed and managed in the foreign jurisdiction. This type of will is drafted by a lawyer in the respective jurisdiction to meet local legal requirements and operates alongside the ...
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- Gift to the solicitor drafting the will
  
  If the solicitor drafting the will is to receive a benefit under the will, then it will not be admitted to probate until additional requirements of the registrar are met. See the Supreme Court’s Guidance notes for unusual applications.
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- Homemade wills
  
  The court in Jones v Robinson & Ors [2019] NSWSC 932 noted at [47] that:
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- Incorporation by reference
  
  A document may be incorporated into a will by referring to it. McDonald J stated in Fast and Ors v Rockman and Ors [2015] VSC 337 at [9]:
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- International wills
  
  An international will is one that is recognised as a valid form of will in all countries that have ratified the Convention Providing a Uniform Law on the Form of an International Will 1973. This convention seeks to harmonise and simplify proof of formalities for wills that have international ...
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- Legislation
  
  Applicable legislation includes:
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- Living wills
  
  In Australia, the term living will is not legally recognised. Its purpose though, is to clearly outline an individual's desired medical treatment if they are unable to give informed consent.
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- Making a will
  
  A will is not valid unless it is in writing and duly witnessed: s 7 of the Wills Act 1997. However, these provisions are overridden if a will is made pursuant to s 21, which provides that a will can be made for a person without testamentary capacity at the direction of the court.
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- Marriage
  
  Effect on existing will A will is revoked by marriage: s 13(1) of the Wills Act 1997, unless it is made in contemplation of marriage.
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- Minimum age of will maker
  
  Pursuant to s 5 of the Wills Act 1997, a will made by a minor, a person who is less than 18 years old, is not valid. However, there are several exceptions to this rule, namely:
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- Multiple original copies of a will – Conglomerate will
  
  If a willmaker executes more than one copy of the same will, then all copies of that will must be submitted to the Office of Probates. This will usually require additional information in the affidavit as to how many copies were executed, and whether they have all been submitted.
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- Multiple wills
  
  Theoretically, it is possible to have more than one will. This may be the case where the testator has assets in two or more different jurisdictions, typically Australia and another country. It is only necessary to prove the local will in each jurisdiction.
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- Mutual wills
  
  People are free to enter contracts to leave property by will. What makes wills mutual, rather than reciprocal, is the inclusion of a term in the agreement that a will is not to be revoked. See the precedent Mutual Wills – Contract to Make Mutual Wills on the Wills matter plan.
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- Promise to make a will or a bequest
  
  A testator may be bound to honour a promise to make someone a beneficiary in their will, or to leave certain property to a certain beneficiary, if the promisee has relied on that promise: Delaforce v Simpson-Cook [2010] NSWCA 84.
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- Property that can be dealt with in a will
  
  Any property personally owned by the testator in Victoria can be disposed of in a will made in Victoria. This extends to property to which the testator’s legal personal representative becomes entitled in their capacity of legal personal representative, after the date of the testator’s death. For ...
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- Rectification
  
  Section 31 of the Wills Act 1997 provides the court may make an order to rectify a will if the court is satisfied that the will does not carry out the testator’s intentions either due to a clerical error, or because the will does not give effect to the testator’s instructions. Applications for ...
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- Revival of a revoked will
  
  A revoked will can be revived by re-execution, or by execution of a codicil showing an intention to revive all or part of a revoked will. Revival of a will which was partly revoked and later revoked as to the balance only revives that part of the will most recently revoked unless a contrary ...
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- Revocation
  
  Sections 12–14 of the Wills Act 1997 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 that purports to require an executor to appoint a particular firm of solicitors to act on behalf of the estate is not binding.
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- Statutory wills
  
  A statutory will is a will made by a court under a statutory provision.
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- Superannuation
  
  Superannuation is not personal property. Unless there is a valid binding death benefit nomination, the superannuation trustee will use their discretion, in accordance with the terms of the trust deed and subject to superannuation law, to decide whether to pay the death benefit to the dependents or ...
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- Survivorship clause
  
  Most wills require that a beneficiary survive the testator by 30 days. Section 39 of the Wills Act 1997 states that beneficiaries to whom a disposition of property is made must survive the testator by 30 days; otherwise, they are deemed to have predeceased the testator. See also s 45.
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- Testamentary capacity
  
  If a will is rational on its face and is proved to have been executed and attested in the manner prescribed by law, it is presumed in the absence of evidence to the contrary, to have been made by a person of competent understanding: Timbury v Coffee [1941] HCA 22. The requirements for testamentary ...
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- Testamentary discretionary trusts
  
  A testamentary discretionary trust is a trust that is established by will and comes into being on the death of the testator. The testator appoints the trustee and sets out the terms of the trust in their will. They nominate the beneficiaries who are eligible to receive the trust's income and ...
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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 and almost anything ...
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  - Negotiating the scope of objectionable subpoenas
    
    Most often the legitimate forensic purpose objection will relate to the breadth of the subpoena – the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no legitimate forensic purpose. Often a subpoena ...
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  - Oppression
    
    A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to legitimate forensic purpose. Where a subpoena causes unreasonable trouble and expense to the ...
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  - Public interest immunity
    
    Public interest immunity is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R [1984] HCA 85 and has frequently been claimed, considered and applied since. ...
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  - Statutory privileges
    
    There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ...
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  - Legal professional privilege
    
    Legal professional privilege is a complex area. It exists in both common law and by virtue of ss 117-119 of the Evidence Act 1995 and it depends which jurisdiction as to which iteration applies. See: Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 at [11]. Both forms of ...
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- Arguing a subpoena objection in court
  
  If the subpoena is pressed over an objection the objecting party needs to file the appropriate document to bring the objection before the Court. If unsure, check the rules of the Court in which the subpoena is issued or ask the Court registry. The procedure varies not just from state to state, but ...
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- Forms - Response and objections
  - 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 Victoria when acting for the plaintiff or the estate.

Overview

Precedents in this publication include:

4 Matter Plans Included

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