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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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a solicitor 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 regulated ... ”
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“ Disclosure requirements vary between the states and territories and are embodied in each costs agreement. Law practices are required to make written disclosure of a wide range of matters relating to the costs of legal services before or as soon as practicable after the law practice is retained. ”
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“ Costs disclosure is not required in relation to certain clients, described in the legislation as ‘sophisticated clients’ or ‘government or commercial clients’ as defined by the relevant legislation to include clients such as lawyers, law firms, public companies, liquidators and government entities. ... ”
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“ Cost agreements are not always required although clearly as between the practitioner and their client there will be disclosure but without the need for formal compliance with the regulation. The limits are: ”
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“ In NSW & VIC there is a standard costs disclosure for fees under $3,000 which is included in the precedents. If the total legal costs in a matter (excluding GST and disbursements) are not likely to exceed $3,000 (the higher threshold), a law practice may, instead of making a disclosure under ... ”
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“ Knowing that clients are disinclined to read, sign and return cost agreements, the letter sending them usually provides that unless heard to the contrary the practice will assume agreement. There will almost always be a later opportunity to have the agreement signed. Of course, many practitioners ... ”
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“ Costs are remuneration for professional work when acting in the capacity of a barrister or solicitor. Payments to a practitioner for work which is not professional work, are not costs. Disbursements are payments made, or liabilities incurred in the course of practice and which the practitioner is ... ”
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“ Firms are required to provide an estimate of the total of costs, excluding GST and disbursements, and information on the impact of any significant change to these costs. A law practice must take all reasonable steps to satisfy itself that the client has understood and consented to the proposed ... ”
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“ What is a disbursement Disbursements are payments made, or liabilities incurred in the course of practice, and which the practitioner is bound to pay whether put in funds by the client or not; or payments which, by established custom and practice of the profession, the practitioner is bound to pay. ... ”
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“ A lawyer may request money on account of fees be paid into a trust account before the commencement of work. This is particularly so in criminal and other court matters where the inclination to pay may wane with an unwanted outcome. The funds may cover legal fees as well as disbursements and the ... ”
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“ The costs agreement will set out the billing cycle. Commonly a regular monthly billing cycle is adopted covering work undertaken during the previous month. ”
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“ A lump sum invoice is one which sets out a recital describing the legal service provided and a total amount. An itemised invoice is one which sets out in detail each of the legal services provided, the date they were provided, and the cost for each service. An itemised invoice allows for an invoice ... ”
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“ A law practice cannot charge for the time spent in preparing an invoice. A law practice cannot charge for the time spent in preparing an itemised invoice for a client who has already received a lump sum invoice. ”
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“ All bills should be accompanied by a written statement setting out the avenues that are open to the client in the event of a dispute and any time limits that apply to the taking of such action. Under the uniform law in NSW and VIC each bill or covering letter must be signed by a principal of the ... ”
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“ In 1991 the Australian Competition and Consumer Commission released guidelines to assist businesses in the withdrawal on one and two cent pieces. In the purchase of goods or services for cash, businesses were advised to round the final payment: ”
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“ – When to charge and how to charge Goods and Services Tax (GST) is a broad-based tax of 10% applied to most goods and services, including legal services. Businesses are required to register for GST if their turnover exceeds the $75,000 threshold. If turnover is less than $75,000 than registration ... ”
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“ Reducing fees can create good will but needs to be handled with care as some take offence to the implication that they cannot afford to pay for the work they have retained. It is also a hard won reality that comes from experience that people are inclined not to value any advice given for free. ”
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“ Credit terms are quite common and need to be clearly documented and administered. ”
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“ Notification of rights is a requirement in all states and is found in all example invoice precedents. If the client has not been advised of their rights in a costs agreement, then practitioners must advise the client of their rights at the time of issuing the invoice. ”
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“ Monthly accounting for work in progress is recommended in order to achieve target lockup days. If debtors are not followed up promptly cash flow reduces making it imperative to adopt a debtor’s policy for effective debtor control. All overdue accounts must be followed up promptly and repeatedly. ”
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“ Termination When a retainer is terminated before completion a lawyer may claim costs for the work done to the date of termination on a quantum meruit basis if: ”
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“ Sound financial management is absolutely critical to the success of the law practice. There is a high correlation between practices with poor financial management and increased probability of experiencing professional negligence claims. The link is clear. Principals, who do not manage their ... ”
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“ Methods of payment include: Credit card; ”
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“ All By Lawyers cost agreements include the following authority to transfer money to pay their invoices: Trust money ”
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“ Lawcover recommends that practitioners use the cost assessment scheme to recover costs. Instituting proceedings against a disgruntled client who refuses to pay an outstanding bill exposes practitioners to the risk of a cross-claim in negligence being filed. The advantage of the cost assessment ... ”
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“ Other states For more information on similar procedures that exist in some other states, see: ”
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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 Rules 2020 apply. The general rule in most civil matters is that costs ... ”
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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. ”
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