Family Provision Claims | By Lawyers
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Family Provision Claims

VIC

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

4 Matter Plans

Overview

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

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

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

Precedents in this publication include:

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

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

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 101 Succession Answers (VIC)
    • Item icon 101 Subpoena Answers
    • Item icon 101 Costs Answers
    • Item icon Further information
  • Item icon 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 ...

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

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    • Item icon Eligible persons
      From 1 January 2015 the following claimants are eligible persons under s 90 Administration and Probate Act 1958:

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    • Item icon 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:

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

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    • Item icon 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 ...

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    • Item icon Calderbank letter
    • Item icon Costs disclosure before settlement
      See 101 Costs Answers for more information on costs disclosure generally. In litigation matters, the lawyer’s disclosure obligation extends to giving the client a reasonable estimate of the costs that will be payable if the matter is settled, including any costs of another party that are likely to ...

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    • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
    • Item icon Mechanics of settlement
      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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    • Item icon Letter to beneficiary affected by settlement of claim
    • Item icon Deed of settlement of a claim
    • Item icon Deed of family arrangement
    • Item icon Deed of family arrangement - Life tenant and remainderman
    • Item icon Minutes of Consent Orders pursuant to Rule 59 06
    • Item icon Clause - Consent orders for provision
    • Item icon Offer of compromise
    • Item icon Example content - Offer of compromise
    • Item icon Letter reporting to estate on settlement
  • Folder icon C. Going to court
    • Item icon 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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    • Item icon 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.

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    • Item icon Commercial Division Standard Orders Booklet – County Court Victoria
    • Folder icon If required - Brief to counsel
      • Item icon Brief to counsel - Family provision claim
      • Item icon Example content - Brief to counsel - Family provision claim
    • Item icon 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 ...

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    • Folder icon Certifications
      • Item icon Certification of prior overarching obligations certification
      • Item icon Proper Basis Certification
    • Item icon 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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    • Item icon Notice of appearance
    • Item icon Letter to plaintiff's solicitor regarding choice of court
    • Folder icon If required - Litigation guardian
      • Item icon Legal incapacity
      • Item icon Consent to act as litigation guardian
      • Item icon Solicitor's certificate - Appointment of litigation guardian
      • Item icon Order approving compromise of claim of minor (Supreme Court)
      • Item icon Order approving compromise of claim of minor (County Court)
      • Item icon Minutes of Orders for Part IV/TFM Application for Approval of Compromise
    • Item icon 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 ...

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    • Item icon 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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    • Folder icon If required - Affidavit of executor OR administrator of the estate
      • Item icon Clause - Affidavit of executor OR administrator of the estate
      • Item icon Affidavit
    • Item icon Letter to client enclosing draft affidavits
    • Item icon Letter to client enclosing affidavits for signing
    • Item icon Letter to witness enclosing affidavit for signing
    • Item icon 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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    • Item icon Minutes of Part IV/TFM Orders - First Directions Hearing
    • Item icon Letter to client after first directions hearing
    • Item icon Letter to potential additional defendants
    • Item icon 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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    • Folder icon If required - Gathering and exchanging evidence
      • Item icon 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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      • Item icon 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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      • Item icon 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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      • Item icon Notice to produce
      • Item icon Affidavit
      • Folder icon Subpoenas
        • Item icon Subpoena both to attend to give evidence and to produce
        • Item icon Subpoena both to attend to give evidence and to produce (County Court)
        • Item icon Subpoena for production to the prothonotary
        • Item icon Subpoena for production to registrar (County Court)
        • Item icon Subpoena to attend to give evidence
        • Item icon Subpoena to produce
        • Item icon Subpoena to produce (County Court)
    • Item icon 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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    • Item icon Certificate identifying exhibit
    • Item icon 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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    • Item icon Letter to REA seeking market appraisal for comparison to plaintiff’s market appraisal
    • Item icon Letter to REA seeking market appraisal of estate property
    • Item icon 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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    • Item icon Example content - Defendant's position statement for hearing
    • Item icon Chronology
    • Item icon Outline of submissions
    • Item icon Costs disclosure before settlement
      See 101 Costs Answers for more information on costs disclosure generally. In litigation matters, the lawyer’s disclosure obligation extends to giving the client a reasonable estimate of the costs that will be payable if the matter is settled, including any costs of another party that are likely to ...

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    • Item icon 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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    • Item icon 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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    • Item icon 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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    • Item icon Application for leave to appeal
  • Folder icon D. Finalising the matter
    • Item icon Finalising the matter
      The estate solicitor frequently has a lot of work to do after a family provision claim is determined, but that is likely to be under the scope of the presumably separate retainer to act on the administration of the estate. The claim file will often need to await the sale of assets and the ...

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    • Item icon Letter to estate finalising the matter
    • Item icon Example invoice incorporating notification of client's rights - VIC
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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