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 to this publication can be viewed on Obiter - our News & Updates site.
Guides in this publication
MATTER PLAN
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“ Contents Overview and time limits3 ”
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“ South Australia A full commentary on the law and practice as it currently applies to acting for the plaintiff in family provision claims. ”
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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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“ 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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“ 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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“ Probate Registry – Courts Administration Authority ”
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“ Estates (SA); 101 Subpoena Answers ”
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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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“ Fraud and particularly cyber fraud is 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 the ... ”
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“ Initial steps 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 no provision, or what they consider to be inadequate provision, from the deceased’s estate under a will or under the laws of intestacy. ”
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“ Per 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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“ To assess the viability of the client’s prospective claim and advise the client of its merits, it is necessary to analyse the claim on the basis of the matters the court has the discretion to consider under the Act. There is substantial case law on these types of claims. The general position is ... ”
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“ Section 7 Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person provides: Where— ”
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“ The court’s discretion to make an order is governed by the two-stage process described by the High Court. In Singer v Berghouse [1994] HCA 40 Mason CJ, Deane and McHugh JJ, dealing with the NSW legislation, held that once eligibility is decided the court is required to undertake a two-stage process: ”
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“ Competing interests of a widow Where a client is competing for provision with a widow 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 their estate allow, that the widow is secure in their ... ”
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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 they do not leave the estate or, if they do, that the executor or administrator can be held accountable. It is therefore crucial ... ”
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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 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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“ 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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“ Family provision applications 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. There may be cases where your client wants to bring a claim but no application for the grant of probate or letters ... ”
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“ Rules 314-317 of the Rules set out the specific procedures to be followed in relation to family provision claims in the court. Per r 315, subject to certain exceptions, once a defence has been filed then action is to proceed ‘in the usual way and in accordance with the usual time limits’ (See also ... ”
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“ A defence to a claim is filed in the usual way pursuant to r 92. These can be either in the form of formal pleadings or an affidavit, again depending on how the original claimant commenced the claim and subject to any order to the contrary. If there is an allegation by the estate of ... ”
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“ If an executor or administrator has no personal interest in the outcome of the claim, they may seek the court’s permission to withdraw from the hearing: r 315(d). This would be appropriate if all the persons who might be affected by the order sought are before the court. Under such circumstances, ... ”
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“ Where a party is a protected person (a person under a disability as defined under r 4) as a general rule they may not carry on proceedings except by their litigation guardian, but the court may grant permission for them to act personally per r 78(1) of the Rules. Parties must inform the court if ... ”
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“ On the first hearing date matters will be listed before a Judge (Master) of the Supreme Court typically on Level 5 of the Sir Samuel Way Building, Victoria Square. The parties are expected to have conferred in advance for the purpose of providing the court with the directions they are seeking and a ... ”
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“ Except where specifically addressed under r 315 (affidavit by executor) or r 316 (summary determination), pretrial procedures are dealt with in the usual manner under the Supreme Court Civil Rules 2006. This will almost inevitably involve a court-ordered settlement conference or mediation conducted ... ”
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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 plaintiff, if that is the ... ”
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“ Unless it is being dealt with under r 316 summary procedure, a family provision trial will proceed like any other. It is rare for these matters to proceed to trial and 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. Rule 316 ‘Summary determination’ provides that: ”
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“ Under section 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 the Supreme Court Act 1935 s 40 and r 263 and supp r 195 apply. The general rule in most civil matters is that costs follow ... ”
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“ Section 9(1) of the Act provides: 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 under r 280 and 281 by filing a notice of appeal in accordance with r 282 and supp r 228. Appeals against final judgments of Masters and single judges are to the Full Court. 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 ... ”
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