Family Provision Claims
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.
Recent updates to this publication can be viewed on Obiter - our News & Updates site.
MATTER PLAN
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“ Contents Comparative table of time limits3 ”
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“ Contents Comparative table of time limits3 ”
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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 ... ”
-
“ 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 ... ”
-
“ 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? ”
-
“ 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 ... ”
-
“ 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, ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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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“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 contains the provisions relating to subpoenas. In criminal cases subpoenas are covered in s 220 - 232 Criminal Procedure Act 1986. ”
-
“ A subpoena is a tactical tool in litigation, but should be employed as part of the overall strategy. A subpoena allows you to obtain evidence that might support your client’s case. It should be an integral part of the case theory. You should issue a subpoena to obtain documents that are likely to ... ”
-
“ In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from your instructions and your formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building your case. ... ”
-
“ Applying to the court You can issue a subpoena by attending at the registry, or filing online. You should provide the court with sufficient copies to allow for you, the recipient, the court and all parties to the litigation to receive one. A subpoena can be issued out of any registry of the ... ”
-
“ Who is the right recipient Subpoenas need to be addressed to a person. ”
-
“ Scenario: Your 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 your client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ... ”
-
“ Always check the specific rules for service for the court where you are issuing the subpoena: see the links to court websites in Power to Issue a Subpoena above or Further Information below. Generally, subpoenas require personal service, unless they are directed to police or other public ... ”
-
“ An addressee need not comply with the requirements of a subpoena unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. See r 33.6 Uniform Civil Procedure Rules 2005 and s 224 Criminal Procedure Act 1986. Conduct money ... ”
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“ In criminal proceedings, 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 Criminal Procedure Act 1986. This effectively means there are no costs sanctions for a criminal defendant issuing numerous and objectionable, ... ”
-
-
-
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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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“ 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 ... ”
-
“ 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. ”
-
“ 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 ... ”
-
“ 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 ”
-
“ 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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“ Supreme Court of Queensland ”
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“ Estates Supreme Court Civil ”
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“ The limitation period for an application for a family provision order is nine months from the date of death: see s 41(8) of the Succession Act 1981. The section provides: (8) Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the ... ”
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“ If required – Challenging the validity of a will Challenging a will questions its validity. ”
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“ Challenging a will questions its validity. Contesting a will questions the fairness of its provisions. ”
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“ Only property that falls into the estate in the jurisdiction of the claim can be affected by an FPA. Generally that is all immovable property within Queensland. The court’s power to deal with immovable property is governed by the law of lex situs - the law of the place in which property is ... ”
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“ Inter vivos disposals: Queensland does not have a notional estate provision. The court does not have jurisdiction to claw back property disposed of during the deceased’s lifetime, even if it is done to defeat an FPA claim - re Richardson [1920] SALR 24, re Thomson [1933] NZLR 59. However, there ... ”
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“ The first issue to be determined is the eligibility of the person seeking further provision out of the estate. The Act enables an eligible person to apply for adequate provision out of the estate for that person’s maintenance and support. Definitions of eligible applicants ”
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“ To protect the right to bring an application for provision out of the estate, the personal representative must be served with a written notice of intention to make an application within six months of the date of death – see ss 44(3) and 44(4). If the personal representative has distributed the ... ”
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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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“ A claimant must first be an eligible person with a claim upon the testator’s bounty as discussed in Getting the matter underway. If the claimant is an eligible person, the Succession Act requires the claimant to demonstrate need. Need is assessed by an examination of their personal and financial ... ”
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“ Uniform Civil Procedure Rule 689 provides that costs follow the event unless the court considers another order is more appropriate. This provision was introduced in 1999 after the decision of Singer v Berghouse [1993] HCA 35 at 709 per Gaudron J. The onus is on the losing party to convince the ... ”
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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 takes the view that they will not settle, the claimant will commence proceedings seeking orders for provision and costs to be paid by the estate. Always ... ”
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“ Once the question of eligibility has been determined the next enquiry is for the court to determine what is adequate provision: s 41(1) SA. In determining inadequacy the court looks to what it can identify as necessary for a particular claimant’s proper maintenance and support. Adequacy is ... ”
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“ Relevant factors in assessing a claim include: The size of the estate; ”
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“ The assets available to make provision for a claimant are confined to the estate of the deceased. Refer to discussions under Getting the matter underway – Applicable Property and Excluded Property. This means that certain assets would be unavailable, namely: ”
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“ For the purposes of an FPA, the court will not disturb a distributed estate provided the distribution was properly made: s 44(3). CF alternative causes of action such as promissory estoppel, constructive and/or resulting trust claims. Refer to the discussion on Time Limits above. ”
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“ The court has a wide discretion as to the manner in which provision can be made. Provision can be made by way of: a lump sum ”
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“ Applications can be settled in a number of ways but have different tax implications. Applications settled after proceedings are commenced can be disposed of by the making of consent orders for provision or further provision in favour of the applicant from the estate. Any such order takes effect ... ”
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“ The claimant must put the estate on notice that they intend to make application to the court, within six months of the date of death, and once on notice the estate cannot be distributed without the executor being personally liable unless distributed in terms of section 44(3)(b). There is no ... ”
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“ The proceedings for a family provisions application are commenced by filing an Originating Application, and supported by an affidavit. The affidavit must depose to facts sufficient to support a prima facie entitlement. Practice Direction 8 of 2001 sets out the process of commencing the proceedings. ”
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“ Where the executor/administrator is a person under a legal incapacity, they may not carry on proceedings except by a litigation guardian and, unless the court orders otherwise, the litigation guardian of a person under legal disability may not commence or carry on proceedings except by a ... ”
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“ Alternative dispute resolution is mandatory in family provision applications. Chapter 9, Part 4 of the Uniform Civil Procedure Rules dictates the process for the conducting of such mediation. After all affidavits are filed, the matter is then set down for mediation. The mediator is appointed by ... ”
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“ In 2010 changes were implemented to the process of consent orders. A Registrar is no longer permitted to grant consent orders in an FPA, pursuant to Supreme Court Practice Direction Number 4 of 2010. Applications where consent orders are more appropriately made by a judge, and will generally be ... ”
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“ If mediation is unsuccessful, the mediator will file a form with the court confirming that is the case. Supreme Court Practice Direction 9 of 2010 sets out the process of setting a matter down for trial. Practice Direction 14 of 1999 requires the legal representative to provide a written outline ... ”
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“ The effect of orders made under the Succession Act is that it exempts the parties from stamp duty where otherwise dutiable property is transferred in accordance with the terms of the order. This does not extend to deeds of settlement that are not court orders. ”
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“ UCPR 689 provides that costs follow the event unless the court considers another order is more appropriate. This provision was introduced in 1999 after the decision of Singer v Berghouse [1993] HCA 35 at 709 per Gaudron J. The onus is on the losing party to convince the court that he or she should ... ”
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“ The parties to an FPA do not have an as-of-right entitlement to disclosure. The obligation to give disclosure only applies to a proceeding started by application if the court directs: UCPR 209(1)(c). The applicant must seek the inclusion of directions for disclosure in the consent directions; seek ... ”
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“ The practice directions have significantly reduced the number of cases in this area that fail to reach resolution and proceed to a final hearing. Necessity for a grant of probate or letters of administration for the purpose of the proceedings ”
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“ Where the claim does not exceed $750,000, the originating application should be filed in the District Court. Claims in excess of $750,000 must be brought in the Supreme Court. Practice Direction 8 of 2001 issued out of the Supreme Court is identical in almost all respects to Practice Direction 8 ... ”
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“ There are a variety of matters that both the applicant and respondent should investigate. These can either provide a defence to a claim or an alternative cause of action. Disentitling conduct ”
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“ Contents Comparative table of time limits3 ”
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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’. ”
-
-
-
“ 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 ... ”
-
“ See s 3 and the Dictionary of the Evidence Act 1995: “document” means any record of information, and includes: ”
-
“ 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, ... ”
-
-
-
“ 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 ... ”
-
“ 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, ... ”
-
-
“ 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 ... ”
-
“ 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 ... ”
-
-
-
“ 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? ”
-
“ 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 ... ”
-
“ 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 ... ”
-
-
-
“ 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, ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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; ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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, ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
-
“ 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, ... ”
-
-
-
“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 contains the provisions relating to subpoenas. In criminal cases subpoenas are covered in s 220 - 232 Criminal Procedure Act 1986. ”
-
“ A subpoena is a tactical tool in litigation, but should be employed as part of the overall strategy. A subpoena allows you to obtain evidence that might support your client’s case. It should be an integral part of the case theory. You should issue a subpoena to obtain documents that are likely to ... ”
-
“ In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from your instructions and your formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building your case. ... ”
-
“ Applying to the court You can issue a subpoena by attending at the registry, or filing online. You should provide the court with sufficient copies to allow for you, the recipient, the court and all parties to the litigation to receive one. A subpoena can be issued out of any registry of the ... ”
-
“ Who is the right recipient Subpoenas need to be addressed to a person. ”
-
“ Scenario: Your 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 your client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ... ”
-
“ Always check the specific rules for service for the court where you are issuing the subpoena: see the links to court websites in Power to Issue a Subpoena above or Further Information below. Generally, subpoenas require personal service, unless they are directed to police or other public ... ”
-
“ An addressee need not comply with the requirements of a subpoena unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. See r 33.6 Uniform Civil Procedure Rules 2005 and s 224 Criminal Procedure Act 1986. Conduct money ... ”
-
“ In criminal proceedings, 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 Criminal Procedure Act 1986. This effectively means there are no costs sanctions for a criminal defendant issuing numerous and objectionable, ... ”
-
-
-
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
“ 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 ... ”
-
-
-
-
-
-
“ 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. ”
-
“ 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 ... ”
-
“ 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. ”
-
“ 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 ... ”
-
“ 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 ”
-
“ 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 ”
-
-
-
-
“ 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 ... ”
-
“ 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’. ... ”
-
“ 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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“ Supreme Court of Queensland ”
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“ Estates Supreme Court Civil ”
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“ The limitation period for an application for a family provision order is nine months from the date of death: see s 41(8) of the Succession Act 1981. The section provides: (8) Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the ... ”
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“ If required – Challenging the validity of a will Challenging a will questions its validity. ”
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“ Challenging a will questions its validity. Contesting a will questions the fairness of its provisions. ”
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“ Only property that falls into the estate in the jurisdiction of the claim can be affected by an FPA. Generally that is all immovable property within Queensland. The court’s power to deal with immovable property is governed by the law of lex situs - the law of the place in which property is ... ”
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“ Inter vivos disposals: Queensland does not have a notional estate provision. The court does not have jurisdiction to claw back property disposed of during the deceased’s lifetime, even if it is done to defeat an FPA claim - re Richardson [1920] SALR 24, re Thomson [1933] NZLR 59. However, there ... ”
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“ The first issue to be determined is the eligibility of the person seeking further provision out of the estate. The Act enables an eligible person to apply for adequate provision out of the estate for that person’s maintenance and support. Definitions of eligible applicants ”
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“ To protect the right to bring an application for provision out of the estate, the personal representative must be served with a written notice of intention to make an application within six months of the date of death – see ss 44(3) and 44(4). If the personal representative has distributed the ... ”
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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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“ A claimant must first be an eligible person with a claim upon the testator’s bounty as discussed in Getting the matter underway. If the claimant is an eligible person, the Succession Act requires the claimant to demonstrate need. Need is assessed by an examination of their personal and financial ... ”
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“ Uniform Civil Procedure Rule 689 provides that costs follow the event unless the court considers another order is more appropriate. This provision was introduced in 1999 after the decision of Singer v Berghouse [1993] HCA 35 at 709 per Gaudron J. The onus is on the losing party to convince the ... ”
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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 takes the view that they will not settle, the claimant will commence proceedings seeking orders for provision and costs to be paid by the estate. Always ... ”
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“ Relevant factors in assessing a claim include: The size of the estate; ”
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“ The assets available to make provision for a claimant are confined to the estate of the deceased. Refer to discussions under Getting the matter underway – Applicable Property and Excluded Property. This means that certain assets would be unavailable, namely: ”
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“ For the purposes of an FPA, the court will not disturb a distributed estate provided the distribution was properly made: s 44(3). CF alternative causes of action such as promissory estoppel, constructive and/or resulting trust claims. Refer to the discussion on Time Limits above. ”
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“ The court has a wide discretion as to the manner in which provision can be made. Provision can be made by way of: a lump sum ”
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“ Applications can be settled in a number of ways but have different tax implications. Applications settled after proceedings are commenced can be disposed of by the making of consent orders for provision or further provision in favour of the applicant from the estate. Any such order takes effect ... ”
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“ Once the question of eligibility has been determined the next enquiry is for the court to determine what is adequate provision: s 41(1) SA. In determining inadequacy the court looks to what it can identify as necessary for a particular claimant’s proper maintenance and support. Adequacy is ... ”
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“ The claimant must put the estate on notice that they intend to make application to the court, within six months of the date of death, and once on notice the estate cannot be distributed without the executor being personally liable unless distributed in terms of section 44(3)(b). There is no ... ”
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“ The proceedings for a family provisions application are commenced by filing an Originating Application, and supported by an affidavit. The affidavit must depose to facts sufficient to support a prima facie entitlement. Practice Direction 8 of 2001 sets out the process of commencing the proceedings. ”
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“ Where the executor/administrator is a person under a legal incapacity, they may not carry on proceedings except by a litigation guardian and, unless the court orders otherwise, the litigation guardian of a person under legal disability may not commence or carry on proceedings except by a ... ”
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“ Alternative dispute resolution is mandatory in family provision applications. Chapter 9, Part 4 of the Uniform Civil Procedure Rules dictates the process for the conducting of such mediation. After all affidavits are filed, the matter is then set down for mediation. The mediator is appointed by ... ”
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“ In 2010 changes were implemented to the process of consent orders. A Registrar is no longer permitted to grant consent orders in an FPA, pursuant to Supreme Court Practice Direction Number 4 of 2010. Applications where consent orders are more appropriately made by a judge, and will generally be ... ”
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“ If mediation is unsuccessful, the mediator will file a form with the court confirming that is the case. Supreme Court Practice Direction 9 of 2010 sets out the process of setting a matter down for trial. Practice Direction 14 of 1999 requires the legal representative to provide a written outline ... ”
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“ The effect of orders made under the Succession Act is that it exempts the parties from stamp duty where otherwise dutiable property is transferred in accordance with the terms of the order. This does not extend to deeds of settlement that are not court orders. ”
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“ UCPR 689 provides that costs follow the event unless the court considers another order is more appropriate. This provision was introduced in 1999 after the decision of Singer v Berghouse [1993] HCA 35 at 709 per Gaudron J. The onus is on the losing party to convince the court that he or she should ... ”
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“ The parties to an FPA do not have an as-of-right entitlement to disclosure. The obligation to give disclosure only applies to a proceeding started by application if the court directs: UCPR 209(1)(c). The applicant must seek the inclusion of directions for disclosure in the consent directions; seek ... ”
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“ The practice directions have significantly reduced the number of cases in this area that fail to reach resolution and proceed to a final hearing. Necessity for a grant of probate or letters of administration for the purpose of the proceedings ”
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“ Where the claim does not exceed $750,000, the originating application should be filed in the District Court. Claims in excess of $750,000 must be brought in the Supreme Court. Practice Direction 8 of 2001 issued out of the Supreme Court is identical in almost all respects to Practice Direction 8 ... ”
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“ There are a variety of matters that both the applicant and respondent should investigate. These can either provide a defence to a claim or an alternative cause of action. Disentitling conduct ”
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