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 can be viewed at Obiter - News & Updates, via the link above.
Guides in this publication
MATTER PLAN
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“ Commentaries ”
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“ While references to legislation and courts in this guide are NSW based, unless otherwise stated, the general law relating to subpoenas does not differ between states – only the procedure in some respects. In some Australian jurisdictions the term ‘summons’ is used instead of ‘subpoena’, as in ... ”
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“ Uniform evidence law applies in NSW, Victoria, Tasmania and the Territories. However there are variations between the various Evidence Acts in these jurisdictions. There is a useful comparative chart prepared by the Commonwealth Attorney-General’s Department regarding differences between the ... ”
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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, is ... ”
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“ One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ... ”
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“ Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ... ”
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“ Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ... ”
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“ At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for ‘All documents about X’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ... ”
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“ It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as: Out of which jurisdiction/court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case? ”
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“ The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that your client has in their possession or control and that are clearly relevant to the ... ”
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“ Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Technically, documents should be produced to the court, subject to the objection: see Objections below. Where the nature of the ... ”
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“ In criminal cases s 225 of the Criminal Procedure Act 1986 (NSW) 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 ... ”
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“ The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive ... ”
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“ In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a court ... ”
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“ The leading NSW 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] ... ”
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“ In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as: Re Trade Practices Commission v Arnotts Limited; Arnott’s Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; ”
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“ Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ... ”
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“ Most often the LFP objection will relate to the breadth of the subpoena - the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no LFP. Often a subpoena will be drafted carelessly so as to seek documents ... ”
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“ A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to LFP. Where a subpoena causes unreasonable trouble and expense to your client then an objection is ... ”
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“ Public interest immunity (PII) is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R [1984] HCA 85 and has frequently been claimed, considered and applied ... ”
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“ There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ... ”
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“ Legal Professional Privilege (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. See: Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 at [11]. Both forms ... ”
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“ If the subpoena is pressed over your objection you will need to file the appropriate document to bring the objection before the Court. If unsure, check the rules of the Court in which the subpoena is issued or ask the Court registry. The procedure varies not just from state to state, but from court ... ”
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“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 (NSW) contains the provisions relating to subpoenas. In other jurisdictions see: r 414 Uniform Civil Procedure Rules 1999 (Qld); Order 42-42A Supreme Court (General Procedure) Rules 2015 (Vic) In criminal cases subpoenas are covered in s 220 ... ”
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“ A subpoena is a tactical tool in litigation but should be employed as part of the overall strategy. A subpoena allows a party to obtain evidence that might support their case. It should be an integral part of the case theory. Issue a subpoena to obtain documents that are likely to exist and will ... ”
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“ In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from the instructions and the formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building the case. However, ... ”
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“ Applying to the court The procedure for issuing subpoenas and inspecting documents is set out in the applicable civil or criminal procedure rules for each jurisdiction and covered in various levels of detail on the various court websites. See the Victorian County Court website, for example, which ... ”
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“ Who is the right recipient Subpoenas need to be addressed to a person. ”
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“ 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 ... ”
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“ Always check the specific rules for service for the specific court when issuing a 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 officers. ... ”
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“ 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 (NSW) and s 224 Criminal Procedure Act 1986 (NSW); r 419 ”
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“ In criminal proceedings, generally 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 (NSW). However, some jurisdictions differ – Queensland legislation specifically provides that a subpoenaed ... ”
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“ A subpoena is a court order requiring production of stated documents to the court. Even if there is an objection, unless the objection is for oppression or relates to public interest immunity, then the documents should be produced, subject to the objection. The way to deal with this is to produce ... ”
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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 the issuing party or their lawyer. 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 ... ”
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“ Access to, or inspection of, documents produced under subpoena is governed by the rules of court applicable to the various jurisdictions and always at the court’s discretion - see, for example, r 33.8 Uniform Civil Procedure Rules 2005 (NSW). It is important to know how access orders are dealt with ... ”
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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a practitioner charges a client for their professional services and other payments that arise out of the provision of legal services, including disbursements such as court fees. Costs are one of the most heavily ... ”
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“ y trusts? For clients with substantial assets, complicated families or family members who have medical or personal problems, the use of testamentary trusts has multiple benefits over usual wills, summarised below. ”
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“ Legislative scheme Family provision claims are governed by Part 4 ss 40-44 Succession Act 1981 (Qld) and the Uniform Civil Procedure Rules (UCPR) – Chapter 15. ”
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“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”
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“ A challenge to a will is a different issue to a family provision claim. Challenging a will questions its validity, on the basis of the testator’s capacity, for example. Such a challenge requires the claimant to have standing, as a person named in the will or a person entitled under intestacy laws ... ”
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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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“ 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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“ 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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“ Once the question of eligibility has been determined the next enquiry is for the court to determine what an adequate provision is: 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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“ 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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“ 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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“ Alternative dispute resolution is mandatory in family provision applications. Chapter 9, Part 4 UCPR 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 agreement between the parties and ... ”
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“ The estate solicitor frequently has a lot of work to do after a family provision claim is determined, but that is likely to be under the scope of the presumably separate retainer to act on the administration of the estate. The claim file will often need to await the sale of assets and the ... ”
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“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”
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“ A challenge to a will is a different issue to a family provision claim. Challenging a will questions its validity, on the basis of the testator’s capacity, for example. Such a challenge requires the claimant to have standing, as a person named in the will or a person entitled under intestacy laws ... ”
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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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“ 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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“ 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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“ Once the question of eligibility has been determined the next enquiry is for the court to determine what an adequate provision is: 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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“ Alternative dispute resolution is mandatory in family provision applications. Chapter 9, Part 4 UCPR 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 agreement between the parties and ... ”
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“ The estate solicitor frequently has a lot of work to do after a family provision claim is determined, but that is likely to be under the scope of the presumably separate retainer to act on the administration of the estate. The claim file will often need to await the sale of assets and the ... ”
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