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BUNDLE

Estates and Family Provision Claims

This bundle includes guides from the following two publications.


Recent updates can be viewed on Obiter - our blog. 


 


Estates VIC


This comprehensive and practical guide assists practitioners to advise and act for clients in all types of estate matters.


An application for probate or letters of administration can be made with ease and confidence. The guide features detailed commentary and all necessary forms and precedents for obtaining a grant, getting in assets and making the distribution. Deeds of release and indemnity and deeds of family arrangement are included.


Family Provision Claims VIC


This comprehensive and practical publication provides complete coverage of family provision claims, when acting for either the plaintiff or the estate.


The guide provides detailed and easy to follow commentary on the three-stage process applicable to family provision claims and allows the practitioner to provide accurate initial advice and conduct a matter from negotiation through to settlement or hearing.


Practical commentary on current practice directions and authorities on key issues are also provided. 


 



MATTER PLAN
  • “ Contents ”
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  • “ Victoria A full commentary on the law and practice as it currently applies to acting for the testate or an eligible person on a fmaily provision claim. ”
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      • “ New South Wales The term ‘subpoena’ is adapted from Latin, but was never a Latin word as such. It has long been an accepted English word. The plural, used in this guide and generally, is therefore ‘subpoenas’, not ‘subpoenae’. ”
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        • “ This guide deals mainly with subpoenas to produce documents, subpoenas ‘duces tecum’. Much of the law related to subpoenas also applies to subpoenas to give evidence, subpoena ‘ad testificandu’, but there are important, mostly practical, differences. A subpoena can also be both a subpoena to ... ”
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        • “ See s 3 and the Dictionary of the Evidence Act 1995: “document” means any record of information, and includes: ”
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        • “ 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, ... ”
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        • “ 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 then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ... ”
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        • “ 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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          • “ 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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          • “ 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’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ... ”
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          • “ 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: Out of which court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case? ”
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          • “ 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 your client has in their possession or control and that are clearly relevant to the ... ”
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          • “ 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. Documents should not be produced until the objection is either resolved or, depending upon the nature of the objection, until ... ”
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          • “ In criminal cases s 225 Criminal Procedure Act 1986 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 describe something, ... ”
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          • “ The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) 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 ... ”
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          • “ 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 court ... ”
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          • “ The leading civil case is Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 per Moffitt P at 379-382 and was followed in such cases as A v Z [2007] NSWSC 899; ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 and McLaughlin v Dungowan Manly Pty Ltd [2009] NSWSC ... ”
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          • “ In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as: Re Trade Practices Commission v Arnotts Limited; Arnott’S Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; ”
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          • “ 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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          • “ Most often the LFP 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 LFP. Often a subpoena will be drafted carelessly so as to seek ... ”
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          • “ 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 LFP. Where a subpoena causes unreasonable trouble and expense to your client then an objection is ... ”
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          • “ Public interest immunity (PII) 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 (“Hilton Bombing case”) [1984] HCA 85 and has frequently been claimed, ... ”
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          • “ 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 (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. Both forms of the privilege apply the dominant purpose test: Esso Australia Resources v ... ”
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        • “ If the subpoena is pressed over your objection you will need to file a Notice of Motion, or an Application in a case in the federal jurisdiction, asking for an order to set it aside and/or seeking orders that your client be excused from producing any material on an appropriate ground, for example, ... ”
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        • “ A subpoena is a court order requiring production of stated documents to the court. Even if you object, unless the objection is for oppression or relates to a claim of privilege, in which case see Hancock v Rinehart (Privilege) [2016] NSWSC 12 and the discussion of legal professional privilege ... ”
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        • “ 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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        • “ 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 Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where non-compliance ... ”
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        • “ When a subpoena is issued the documents are produced to the court, not to you. 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 proceedings, will respond to a subpoena ... ”
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        • “ It is important to know how access orders are dealt with in different courts. In the Supreme Court, for example, unless any objection is made to the court at the time of production, the access order that will apply is the one noted on the subpoena by the issuing party, otherwise general access ... ”
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      • “ This information is included for research and educational purposes only. The interpretation of these cases is that of the author, and the lawyer should read the complete judgment to ascertain whether a particular case may be relevant to the issue before the lawyer. It needs to be appreciated that ... ”
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      • “ y trusts? For clients with substantial assets, or complicated families, or family members who have medical or personal problems, the use of testamentary trusts have multiple benefits over usual wills summarised below. ”
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      • “ A number of recent cases have highlighted the need for care where executor’s commission is sought by a ‘professional’ executor such as a legal practitioner, in particular where the will makes no specific provision for the payment of commission. A useful starting point for a discussion of a claim ... ”
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      • “ Lawyers face difficulties as regards charging costs and/or commission when acting as a lawyer to, and executor of, a deceased estate. Traditionally lawyers practising in all but large city firms would dabble in property law and wills & estates. ”
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      • “ Most property lawyers will also be involved in the administration of deceased estates and, on occasions, may in fact act as the executor of a deceased estate.  This is entirely appropriate, as there will always be clients who do not have a close friend or relative who they can appoint to fulfil ... ”
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      • “ Every case of course turns on its own facts, but two recent cases, and an ageing population, highlight the need for consideration of a number of issues when agreeing to take on a new wills matter. Fischer v Howe [2013] NSWSC 462 1 ”
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      • “ Death can impact on a conveyancing transaction in a number of ways, whether the death occurs prior to commencement or during the course of the transaction. Survivorship ”
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    • “ Supreme Court of Victoria ”
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    • “ Estates Supreme Court Civil ”
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  • “ Until the introduction of so-called 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 ... ”
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    • “ The estate is often not in an enviable position when it comes to negotiating, because family provision claims by eligible persons have a high rate of success. The Act provides the court with a wide discretion to make orders for needy claimants. The executor is under a duty to compromise legitimate ... ”
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    • “ 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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    • “ Understanding 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, setting out the detail of the plaintiff’s claim, being all of the material required in Schedule 1 to ... ”
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    • “ Claims can be settled in a number of 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 ... ”
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    • “ If you have been unable to negotiate a settlement with the claimant, or your client, after receiving your advice on the claimant’s prospects, declines to settle, the claimant may commence proceedings seeking orders for provision and costs to be paid by the estate. Always reinforce to the executor ... ”
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    • “ Importantly, the practice note applies the Overarching obligations set out in Part 2.3 Civil Procedure Act 2010 (Vic) to family provision claims. Paragraph 10 of the practice note provides that the court expects: Each party not appearing in person shall be represented at all hearings by a ... ”
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    • “ The claimant must put the estate on notice that he intends to make application to the court, and once on notice the estate cannot be distributed without the executor being personally liable. There is no specific form of notice other than that it has to be in writing and must be signed either by ... ”
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    • “ Family maintenance provision applications are made following the grant of probate or of 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 ‘standoff’ where the executor is reluctant to apply, or where various people ... ”
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    • “ Proceedings must be commenced within six months after the date of the grant of probate of the will 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 ... ”
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    • “ 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 prior to the ... ”
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    • “ The plaintiff’s affidavit is the key piece of evidence for the claimant. Schedule 1 to the Practice Note SC CL 7 sets out the matters that the affidavit – or position statement, if the estate is valued at less than $500,000 – must contain: The full name and address of the Plaintiff; ”
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      • “ Discovery is not available as a matter of course in family provision cases as they are commenced by originating motion. Parties to proceedings started by originating motion must be able to show that the documents they seek are relevant and that there are ‘special circumstances'. A common ... ”
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      • “ A subpoena may be served on a third party to provide documents for 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 obtaining documents, ... ”
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      • “ 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 to trial of the documents referred to in ‘paragraph x’ of the affidavit. Where such documents are not referred to, serve a notice to produce ... ”
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    • “ Order 16 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 governs the process. No documents are to be filed until directions have been given by the court: r 16.05. ”
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    • “ The court does not require formal (or '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 ... ”
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    • “ 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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    • “ The number of references in this guide to legal costs is not an accident. Costs in these proceedings are, for what are usually straightforward proceedings, disproportionately high and have been the subject of considerable comment by the justices of the court. If an order for provision is made but ... ”
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    • “ 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: If an order is made in favour of a plaintiff, the Associate of the Judge of the Court or Associate of the Associate Judge shall deliver the ... ”
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    • “ An appeal can be made within 14 days against the decision of a single judge to the Court of Appeal under s 33ZC Division 5 Supreme Court Act 1986 (Vic) and under Order 64 of the Supreme Court (General Civil Procedure) Rules 2015. ”
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