Family Provision Claims
This comprehensive and practical publication provides complete coverage of family provision claims, when acting for either the claimant or the estate.
The guide provides detailed and easy to follow commentary on the two-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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“ Probate Registry – Courts Administration Authority CourtSA ”
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“ Estates Magistrates Court Civil ”
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“ Overview Until the introduction of testators’ family maintenance legislation in New Zealand at the start of the twentieth century, and its speedy adoption in Victoria in 1906, and then throughout the Australian states and ultimately England, there was no way by which a disappointed dependant could ... ”
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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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“ Fraud, and particularly cyber fraud, are a fact of life and practitioners must guard against it. This issue may have particular pertinence in family provision claims where family members may have been estranged and not seen each other for many years or where a potential claimant has not even met ... ”
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“ The client will be a person who has a close family relationship with the deceased, or was a partner or former partner to the deceased, and has received either no provision or what they consider to be inadequate provision from the deceased’s estate under either a will or the laws of intestacy. In ... ”
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“ Under s 6 the following persons are entitled to claim under the Act: the spouse of the deceased or a person who has been divorced from the deceased; ”
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“ The assets available, to make provision for a claimant, are confined to the estate of the deceased. However this may depend on the timing of the claim and distributions already made by the estate. The assets of the estate ”
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“ In order to assess the viability of the client’s prospective claim and advise of its merits, it is necessary to analyse the claim having detailed regard to the matters the court has the discretion to consider under the Act. There is substantial case law on family provision claims. The general ... ”
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“ Section 7 provides: (1)Where— ”
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“ The court’s discretion to make an order is governed by the two-stage process. This two-stage process was described by the High Court in Singer v Berghouse [1994] HCA 40 where Mason CJ, Deane and McHugh JJ, dealing with the NSW legislation, held that once eligibility is decided the court is required ... ”
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“ Competing interests of a surviving spouse When a client is competing for provision with a surviving spouse remember that as a general rule, in the case of a lengthy marriage or de facto relationship, it is the duty of a testator to ensure, so far as the assets of the estate allow, that the ... ”
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“ The court has discretion as to the manner in which provision may be awarded, so it is important when taking instructions from the client to consider what their preference might be such as: a lump sum; ”
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“ Although a claimant can theoretically still claim out of assets of the estate already distributed, where a claim has been brought within time, it is better to ensure that assets do not leave the estate or, if they do, that the executor or administrator can be held accountable. It is therefore ... ”
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“ A challenge to a will is a different issue to a family provision claim. Challenging a will raises the question of whether the will was validly made. Challenging a will relies on certain bases such as the testator’s capacity. Such a challenge requires the claimant to have standing, as a person named ... ”
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“ Even before proceedings are commenced attempts can be made to resolve the claim. In other states the executor or administrator is the party that actively defends proceedings. However, in South Australia, if the executor or administrator’s only interest in the estate is in that role, and not ... ”
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“ Disclose the plaintiff’s case The only genuine and effective way to negotiate for a plaintiff in a family provision case is to prepare and serve on the anticipated defendants an affidavit or statement of claim of the plaintiff, setting out the detail of the plaintiff’s claim. ”
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“ Claims can be settled in a number of ways, each with different tax implications. Bequests under a will are not subject to tax. Family provision orders made by a court take effect as though they were a bequest under the will, so no tax is payable. Claims settled prior to the commencement of ... ”
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“ If negotiations have failed or time has run out, then commence and serve proceedings on behalf of the client within six months of the date of grant of probate. ”
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“ The CourtSA online portal is used for the filing of documents and case management. Practitioners need to register to use it. Registration for the online web portal is a simple process, via the CourtSA website. The website also has demonstrations and further details on how to use the online portal. ... ”
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“ Originating applications for family provision actions are made following the grant of probate or letters of administration – and the time limit for claims runs from the date of grant, not the date of death. ”
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“ Rules 254.10-16 set out the specific procedures to be followed in relation to family provision actions in the court. Consider and comply with Chapter 8 of the Rules also, except where there is anything in rules 254.10-16 to the contrary. See also s 17(2) of the Inheritance (Family Provision) Act ... ”
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“ A response to a claim is filed pursuant to r 84.1. If there is an allegation by the estate of misappropriation or mesne profits by the applicant, this cannot be brought as a counterclaim or cross-action to the family provision action, but needs to be brought by separate proceedings then ... ”
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“ The default position is that, unless there is a court order to the contrary, an administrator is excused from taking any steps in the action other than the filing of affidavits under r 254.13(1) and (2): r 254.13(3). If an executor or administrator has no personal interest in the outcome of the ... ”
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“ Where a party is under a legal incapacity which means they are not capable of managing their participation in a proceeding then they may not carry on a family provision action except by their litigation guardian: r 23.8. Parties must inform the court if they are aware that another party is under ... ”
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“ On the first hearing date matters will be listed before a judge or master of the Supreme Court typically on Level 5 of the Sir Samuel Way Building, Victoria Square. ”
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“ Except where specifically provided under rr 254.10-16, pretrial procedures for family provision actions are dealt with in the usual manner under the Uniform Civil Rules 2020. This will almost inevitably involve a court-ordered settlement conference or mediation conducted by a judge. Prior to the ... ”
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“ The court does not generally require valuations of real property for the purpose of the proceedings and certainly does not want expert competing valuation evidence. Market appraisals are sufficient, including appraisals of the cost of purchasing a suitable home for the applicant, if that is the ... ”
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“ Unless being dealt with under r 316 summary determination, a family provision trial will proceed like any other. It is rare for these matters to proceed to trial as they are often resolved through negotiation and settlement. If the claim and defence are in the form of affidavits, consideration ... ”
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“ Consideration should be given as to whether the case is suitable for summary determination although, in practice, this is uncommon. ”
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“ Under s 9(8) of the Act, the court may make costs orders as it considers just. The court’s usual discretion as to costs and the rules applicable to civil matters under s 40 Supreme Court Act 1935 and Chapter 16 Uniform Civil Court Rules 2020 apply. The general rule in most civil matters is that ... ”
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“ Section 9(1) of the Inheritance (Family Provision) Act 1972 relevantly provides: (1)Every order that provision be made for the maintenance, education or advancement of any person out of the estate of a deceased person must, inter alia— ”
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“ An appeal can be made within 21 days per r 214.1 by filing a notice of appeal in accordance with r 214.2. Appeals against final judgments of masters and single judges are to the Full Court: r 212.3(1). Counsel’s advice should prudently be sought before lodging any appeal. ”
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“ When finalising a matter it is important to terminate the retainer. This informs the client in writing that all work on the matter is complete and that no further work will be undertaken unless the firm is otherwise instructed. If the matter is finalised in such a way that the client retains rights ... ”
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