Family Provision Claims, Leases and Family Law

“ First steps Taking good instructions ”

“ Taking good instructions The use of the precedent Retainer Instructions ensures that all important issues are considered, instruction which cannot be contradicted later recorded, costs discussed, and the scope of the retainer clearly defined. ”

“ The scope of the matters the court may consider in a family provision claim and the scope of the evidence that might be required in support is potentially wide. By any measure the court’s discretionary power in determining these claims is a broad one. Family provision cases are also strictly case ... ”

“ Where property that would otherwise have been part of the deceased’s estate and available to meet any family provision order has been transferred to a person, or into a trust, for less than full consideration – a ‘relevant property transaction’ as defined in s 75 of the Succession Act 2006 – then ... ”

“ A threshold issue upon taking instructions, regardless of whether the deceased left a will or not, is to determine whether the client can establish eligibility under s 57 of the Succession Act 2006 to bring a claim. The categories of ‘eligible persons’ are: a person who was the wife or husband of ... ”

“ Once eligibility is established, family provision claims involve a two-stage process as originally articulated by the majority of the High Court in Singer v Berghouse [1994] HCA 40: The court must first determine if the claimant has been left without adequate provision for their proper maintenance, ... ”

“ It is common and effective in family provision matters, especially for plaintiffs, to brief counsel at a very early stage. Unlike most types of litigation, the key task of preparing the client’s evidence – the substantive affidavit required by the practice note – must be done before proceedings ... ”

“ Negotiating with the estate Even before proceedings are commenced attempts can be made to resolve the claim. There is a positive obligation on the executor or administrator to compromise any genuine claims against the estate. There is also a strong incentive for beneficiaries to agree to any ... ”

“ Proceedings are commenced by filing a summons in the Supreme Court Equity Division, or the District Court Family Provision List, seeking provision pursuant to s 59 and s 60 of the Succession Act 2006. The District Court has jurisdiction under s 134(1)(c) and (2) of the District Court Act 1973 to ... ”

“ Section 58 of the Succession Act 2006 provides that an application for a family provision order, including a notional estate order, may be made whether or not administration of the estate of the deceased person has been granted. If a grant has been made the administrator is named as the defendant. ”

“ It is common and effective in family provision matters, especially for plaintiffs, to brief counsel at a very early stage. Unlike most types of litigation, the key task of preparing the client’s evidence – the substantive affidavit required by the practice note – must be done before proceedings ... ”

“ The summons and other documents must be served on the estate in accordance with the provisions of r 10.5 of the Uniform Civil Procedure Rules 2005. Methods of service include personal service or posting a copy of the document to the person’s residential or business address or service on the estate ... ”

“ All evidence in family provision cases is by affidavit. The plaintiff must file a substantive affidavit at the time of filing the summons. This affidavit is the plaintiff’s evidence in chief. The estate will file affidavits thereafter and the plaintiff will have the opportunity to file further ... ”

“ Expert evidence in family provision claims is not very common. Like all other evidence, it is by affidavit and it must be relevant. Where the plaintiff claims need based on a medical condition, there will be medical evidence filed, although see paragraph 21(f) of the practice note as to the proof ... ”

“ Section 60(2)(j) of the Succession Act 2006 provides that the court may consider any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. The most common form of statement relied upon is a letter or affidavit from the ... ”

“ Discovery is not usually available in equity proceedings: Practice Note No. SC Eq 11 – Disclosure in the Equity Division. However, discovery may be obtained in family provision proceedings where necessary for the resolution of the real issues in the proceedings. This is usually done by consent. The ... ”

“ 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: paragraphs 25.1 and 25.2 of the practice note. Any practitioner appearing who does not have sufficient familiarity with the matter ... ”

“ Even before proceedings are commenced attempts can be made to resolve the claim. There is a positive obligation on the executor or administrator to compromise any genuine claims against the estate. There is also a strong incentive for beneficiaries to agree to any reasonable settlement proposed by ... ”

“ Practice Note SC EQ 7 provides for mediation in family provision cases and Practice Note SC Gen 6 applies to mediation generally. The court will generally refer matters to mediation by a registrar in which case there is no cost to the parties. See Court-annexed mediation on the Supreme Court website ”

“ If the matter has not settled at mediation, a timetable is required for the preparation of the matter for final hearing and the parties need to attempt to agree on orders in advance. The timetable needs to address filing and service of any updating affidavits of a party or beneficiary and of any ... ”

“ Paragraphs 17.1 and 18 of the practice note require a plaintiff’s final affidavit of costs and an administrator’s affidavit of costs to be exchanged at this stage. The matter will generally be set down for a hearing at this directions hearing, but may be adjourned to a further directions hearing if ... ”

“ The directions made at the final directions hearing will provide for the matter to be prepared for hearing and must be strictly complied with. Any adjournment of the hearing due to non-compliance with directions will have severe costs consequences and, if it is the applicant’s fault, could result ... ”

“ If a family provision order is made, by consent or otherwise, the executor or 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 ... ”

“ When finalising a matter it is important to terminate the retainer. This informs the client in writing that all work on the matter is complete and that no further work will be undertaken unless the firm is otherwise instructed. If the matter is finalised in such a way that the client retains rights ... ”