Family Provision Claims, Leases and Family Law
This bundle includes guides from the following three publications, as well as our Practice Management guide as an extra bonus!
Recent updates can be viewed on Obiter - our blog.
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.
A guide to negotiating and drafting retail, commercial and rural leases including assignment, termination, transfer and other related transactions. The commentary covers the Retail Leases Act requirements and key practical issues in leasing such as bank or personal guarantees, interruption, outgoings, repairs, renewals, registration and subleases.
Precedents include commercial and retail leases in plain English, agreements to lease, disclosure statements, licences, a library of additional clauses and notices, appropriate letters and all that is required for the quick and accurate production of leases and advice to landlords or tenants. Our comprehensive Retainer Instructions ensures nothing is missed and the client is properly advised.
Some of the most popular precedents in this publication include:
- Advice to parties reviewing a lease
- LEASE - Retail - Annexures A and B
- LEASE - Commercial industrial - Annexures A and B
- Deed of assignment of lease
- Reply to lessor's solicitor returning executed lease
- Notice to Owners Corporation
A comprehensive and easy to follow guide to Family Law in the Family Court of Australia and the Federal Circuit Court, with our valuable reference work "101 Family Law Answers".
This publication also provides all commonly required precedents, including applications, affidavits and orders, plus correspondence.
The guide covers all aspects of a Family Law matter, from negotiations prior to commencing proceedings to interim applications, then preparation and conduct of final hearings and enforcement. The commentary includes the conduct of interim hearings and conciliation conferences, together with tools for analysing contributions and s 75(2) factors.
Some of the most popular precedents provided in this publication include:
- Consent orders
- Initial letter to client with costs agreement and copy letter to spouse
- Initial pre-action letter to spouse
- Financial agreement s 90C - After separation
- Parenting plan
- Affidavit - Separation under the one roof
- Summary of assets and liabilities
Guides in this publication
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FAMILY PROVISION CLAIMS - ACTING FOR THE PLAINTIFF (NSW)
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FAMILY PROVISION CLAIMS - ACTING FOR THE ESTATE (NSW)
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101 Subpoena Answers
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101 Succession Answers (NSW)
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LEASES (NSW)
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RETIREMENT VILLAGES NSW
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1001 Conveyancing Answers (NSW)
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PROPERTY SETTLEMENT
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CHILDREN
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FINANCIAL AGREEMENTS
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DIVORCE
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101 Family Law Answers
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PRACTICE MANAGEMENT
MATTER PLAN
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“ Contents Overview and comparative time limits3 ”
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“ New South Wales A full commentary on the law and practice as it currently applies to acting for the plaintiff in family provision claims. ”
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“ Contents ”
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“ Generally2 Application of the legislation3 ”
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“ Generally16 Application of the legislation16 ”
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“ Generally33 Administration33 ”
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“ Accounts63 Ademption64 ”
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“ Generally102 ”
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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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“ Article by Rosslyn F. Curnow Nolch, Principal, Rosslyn Nolch Solicitors, 2017. Amendments to the Powers of Attorney Act 2014 (Vic) will be made by the Powers of Attorney Amendment Act 2016 (Vic) which has now received royal assent. The latest default implementation date is 1 May 2017. One of the ... ”
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“ This article first appeared in The Legal Executive September-October 2014 issue. It is a brief summary of planned changes to succession laws in Victoria, which have triggered media comment such as the Herald Sun article, Experts fear planned changes to estate laws will encourage ‘gold diggers’. ... ”
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“ The purpose of this article is to outline the general scope and requirements of the various Powers of Attorney which may be made pursuant to the Powers of Attorney Act 2014. It by no means includes all of the matters covered by the Act. ”
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“ In the preceding article Succession laws in Victoria - Forthcoming changes we reported on the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014, and noted that at the time of preparing the article it was uncertain whether the Bill would be passed, or passed in its then current ... ”
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“ Note: This outline represents the interpretation of the author, is provided for educational purposes only, and does not constitute legal advice. For a more detailed understanding, the reader must analyse the reports for him/herself. There have been two recent inquiries into matters relating to ... ”
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“ District Court NSW Supreme Court NSW ”
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“ Estates (NSW) Wills, Powers of Attorney & Enduring Guardianship ”
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“ This commentary is based on the provisions of Practice Note No. SC Eq 7, which was issued on 12 February 2013 and commenced on 1 March 2013. The more important provisions are: ”
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“ The client will be a person who has had either a blood or other close relationship with the deceased and has received what they consider to be inadequate or no provision at all from the testator’s will or inadequate provision under the laws of intestacy. Clients often have no idea whether they ... ”
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“ Challenging a will questions its validity. Contesting a will questions the fairness of its provisions. ”
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“ Claims under the Succession Act involve a three-stage process: The claimant must establish eligibility. ”
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“ The essential difference between an agreement and a deed is that of consideration. An agreement must have consideration moving between the parties. It usually involves a promise made for a promise - for example, I will transfer ownership of this horse to you in return for payment of $1,000. ”
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“ An indemnity clause provides that the indemnifier will pay liabilities incurred by the indemnified party as a result of performance of the contract. For example, a principal may indemnify their agent for any liability incurred while carrying out their duties. Indemnity clauses are often included ... ”
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“ Be active in bringing the client’s claim as any proceedings for provision must be commenced within 12 months of the date of death of the testator. If you are instructed to bring a claim and time is running out it may be worthwhile to commence proceedings before negotiations are commenced or ... ”
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“ If you have negotiated for as long as you can without a settlement, or the estate is not willing to negotiate at all, you must commence proceedings on behalf of the client within 12 months of the date of death of the testator by filing a summons in the Supreme Court Equity Division, seeking ... ”
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“ A client may have already had orders made by the court for provision from an estate but due to a significant change in circumstances require further provision. Any application of that nature is made by commencing fresh proceedings seeking orders under ss 59 and 60, but note the major qualification ... ”
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“ Uniform Civil Procedure Rules r 7.15 Where the plaintiff is a person under a legal incapacity, whether as a minor or for some other reason, proceedings can only be commenced on their behalf by a tutor. ”
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“ If a grant has been taken out by the executor or administrator the issue will not arise. However, if there is no grant and it is time to commence proceedings and the legal personal representatives do not intend to take one out, the plaintiff, as an eligible person, will have to take out a limited ... ”
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“ Schedule J Supreme Court Rules If you are acting for more than one claimant on a particular estate the claims can all be brought in the one summons as ‘first plaintiff’, ‘second plaintiff’ and so on. ”
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“ Consider whether it is appropriate to brief counsel to appear on interlocutory steps, including drafting of affidavits to ensure evidence is complete and in proper evidentiary form, to appear on mediation or on the hearing. Consider the need to brief counsel for the final directions hearing, or ... ”
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“ Proceedings must be commenced within 12 months of the date of death of the testator. Otherwise leave must be sought: s 58 Succession Act. If the claim is out of time the client must also seek leave to bring the claim pursuant to s 58(2). That order is sought in the summons. The application for ... ”
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“ Provision is sought from the estate and/or ‘notional estate’ of the deceased: ss 59 and 60 Succession Act. You should always consider including a claim under notional estate in the summons because at the time of commencing proceedings you will probably be unaware of what distribution, if any, has ... ”
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“ There are limitations on the court’s power to designate property as notional estate. These are found in ss 87, 88, 89 and 90 of the Act. Section 90 specifically refers to out of time or additional provisions. The effect of an order designating property as notional estate is that to the extent the ... ”
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“ Section 66 Succession Act empowers the court to make a range of ancillary orders to give effect to an order for provision including but not limited to: orders for transfer of property; ”
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“ Section 65 Succession Act When taking instructions from the client give consideration as to the form of provision the client may be awarded. The court has a wide discretion as to the manner in which provision can be made. It can be by way of: ”
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“ The summons commencing the application should identify the date of death of the deceased. On the filing of the summons there will be a return date allocated before the Family Provision List Judge on the first Friday after 28 days of the date of its filing. ”
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“ The plaintiff’s substantive affidavit should follow the format set out in Annexure 1 to Practice Note No. SC Eq 7. As can be seen the information it must contain is quite extensive. Do not file verbose affidavits with extensive and often irrelevant family histories. ”
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“ Where expert evidence is required the provisions of Practice Note No. SC Eq 5 are to be applied, with any necessary adaptations (paragraph 22 Practice Note No. SC Eq 7). ”
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“ Paragraph 27 of Annexure 1 to the practice note (the plaintiff’s affidavit) refers to evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased person. Section 100 Succession Act sets out the regime for admission into evidence of oral and ... ”
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“ Discovery is not usually available in equity proceedings. Practice Note No. SC Eq 11 Disclosure in the Equity Division makes it difficult to obtain disclosure in such proceedings – that is, the disclosure necessary for the resolution of the real issues in dispute. However, discovery may be ... ”
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“ At any hearing before the Family Provision List Judge each party, not appearing in person, shall be represented by a legal practitioner familiar with the proceedings (paragraph 25.1 and 25.2 practice note). You should communicate prior to the first directions hearing with the other party’s legal ... ”
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“ This is covered by paragraph 9 of the practice note. The administrator will be required, as one of the directions made at the first directions hearing, to serve: the administrator’s affidavit, which really provides necessary information; ”
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“ As with any proceedings, at all times the parties must consider the making of an appropriate offer of compromise under Part 20 Uniform Civil Procedure Rules or a Calderbank offer. Rule 20.26 UCPR requires that a notice of offer must bear a statement to the effect that the offer is made in ... ”
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“ Practice Note No. SC Eq 7 If the matter is referred to court annexed mediation, the originals of the administrator’s affidavits are to be filed in the Registry no later than seven days before the date of the mediation with a covering letter confirming the date of the mediation (paragraph 12 ... ”
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“ If the matter has not settled at mediation, a timetable is to be made for the preparation of the matter for final hearing. The timetable must address filing and service of any updating affidavit of a party or beneficiary, and of any affidavits in reply. The court has made available to the parties ... ”
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“ Paragraphs 17.1 and 18 of the practice note require: a plaintiff’s final affidavit of costs; ”
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“ The directions made at the final directions hearing provide the details as to what needs to be attended to some time before the actual hearing date. The evidence will be by affidavit. Consideration needs to be given, pursuant to UCPR 35.2, as to notices for a defendant to attend for cross ... ”
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“ The number of references to costs in this guide is not an accident. Costs in Succession Act proceedings are, for what are 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 costs ... ”
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“ If a family provision order is made, by consent or otherwise, the administrator must (unless the court otherwise orders) within 28 days after the order is recorded in the court’s computerised court record system, lodge in the probate registry: the probate, letters of administration or copy of ... ”
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