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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 blog. 


MATTER PLAN
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    • “ Stepchild includes child of party to de facto relationship The definition of a stepchild has been extended to include the child of a party to a de facto relationship, so a stepchild of the de facto testator is capable of bringing a claim against the testator’s estate as the deceased step-parent: s ... ”
      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
    • This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
        • “ 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 excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
        • This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
          • “ 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: ”
            This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
          • “ 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, ... ”
            This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
          • “ 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 ... ”
            This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
          • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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? ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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; ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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, ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
          • “ 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, ... ”
            This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
          • “ 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 Queensland ”
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      • “ Estates Supreme Court Civil ”
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    • “ Jurisdiction Section ”
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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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      • “ 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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    • “ Stepchild includes child of party to de facto relationship The definition of a stepchild has been extended to include the child of a party to a de facto relationship, so a stepchild of the de facto testator is capable of bringing a claim against the testator’s estate as the deceased step-parent: s ... ”
      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
    • This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
        • “ 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 excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
        • This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
          • “ 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 ... ”
            This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
          • “ See s 3 and the Dictionary of the Evidence Act 1995: “document” means any record of information, and includes: ”
            This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
          • “ 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, ... ”
            This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
          • “ 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 ... ”
            This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
          • “ 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, ... ”
            This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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? ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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, ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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; ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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, ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
            • “ 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 ... ”
              This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
          • “ 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, ... ”
            This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
          • “ 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 Queensland ”
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      • “ Estates Supreme Court Civil ”
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    • “ Jurisdiction Section ”
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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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      • “ 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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      • “ 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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