Will Disputes Lawyers Sydney

Experts in Family Provisions and Will Disputes Sydney

When it comes to family provision claims, State Lawyers is the best partner that you could ask for. We have a team of lawyers who are all specialists in family provisions. Sydney locals have been coming to us for year to achieve resolution with their will disputes, particularly around family provision claims, and our reputation is built on our ability to offer clear, accurate advice and analysis, and fight hard for our clients in a responsible and efficient manner. This information should not be be relied upon for the purposes of legal advice. We strongly suggest that you speak to one of our Lawyers to discuss your rights.

Frequently Asked Questions
Come to us for advice around family provisions, Sydney

As the expert Will Dispute Lawyers Sydney we aim to provide answers to frequently asked questions that you may have relating to family provisions and disputing wills. We have tried to provide a detailed explanation of rights of individuals who have been left out of a will and all related information for the purposes of education only.

This page provides answers to frequently asked questions that you may have relating to Will Dispute Law in NSW, as well as how that relates to family provisions. Sydney and the state of NSW have laws unique to the region, so make sure that, if you’re a local, you’re checking information from a reputable, local lawyer, such as State Lawyers, before pursuing the matter further. Below, with the FAQs and other information, we have tried to provide a detailed explanation of rights of individuals around family provisions (Sydney), when a party feels left out of a will. Not that this, and all related information for the purposes of education only, and this information should not be relied upon for the purposes of legal advice. If, after reading through this, you would like further information, then we strongly suggest that you speak to one of our lawyers to discuss your rights around family provisions. Sydney residents can find us easily enough; we’re located right in the heart of the city.

We can't find the will?
A common cause that has locals looking for advice around family provisions, Sydney, is that they can’t find the will. State Lawyers can assist in providing direction and advise of what to do next.
My ex has passed away
Another reason that many people look for advice around family provisions, Sydney, is when a former partner passes away. When previous partners have passed away and you are looking after children it is important to know your rights and entitlements. Especially in unexpected circumstances we assist in all facets of will dispute issues.
I do not know where some of my family is?
Another key side service that we offer as part of our family provisions, Sydney, function at State Lawyers is in helping families to track down and find family members to advise them of a death of a loved one. This is an important part of the process and our team will use our skills and investigators to track down loved ones.
I have been left out of the will, what should I do?
At State Lawyers we will educate you and explain the whole process. We have streamlined the process to make it as simple and easy to understand as possible. We resolve matters quickly and ensure that we obtain a fair result.
There is no will
We can assist you in making an application for a grant of probate through the Supreme Court of NSW.
How long does the process take
Each case is different but our state of the art systems and ongoing updates will make you feel at ease. Our team are highly experienced in dealing with disputes and will ensure that you are informed every step of the way.
Do I have to go to court?
In many cases involving family provisions, Sydney, matters do go through court to resolve. That being said, there are also many matters that resolve earlier through the use of mediation and negotiation. Being reasonable and fair and understanding rights is the key to ensuring that the case is resolved quickly and cost effectively. To help you avoid the painful process of going to court, a significant part of the service around family provisions, Sydney, that we offer to local residents at State Lawyers is around how to avoid an unnecessary court case.
Court Decisions
It is imperative to have legal advise to explain Court decisions. At State Lawyers we have a range of experienced solicitors who are able to explain Court decisions in plain and easy to understand language to assist in resolving any misunderstandings or issues.
Who can make a will?
Any person over the age of 18 years old can make a will as long as they have the mental capacity to do so. If the person does not have the capacity to make a will then that will not be properly executed and is deemed not to be binding on the beneficiaries of the will. If there is any doubt over the capacity of an individual then a medical assessment can be ordered by an appropriate person.
How long does a will last for?
A will last until death unless changed or revoked. It is important to note that marriage will revoke a will unless that will has anticipated that marriage.
Why do I need a will?
A will determines the distribution of an individual’s estate upon death. A will is important because if you die without a will, your estate will be distributed according to a legal formula called “intestacy rules”.
Can my will be challenged?
A will may be challenged if the will is considered not valid whereby a person contesting has to show the following:

  • It was not your last will;
  • It was not properly witnessed or signed;
  • Your mental capacity was in question when you made the will;
  • It was altered after it was originally signed; and
  • There was undue influence in making the will.

A will can be contested within 12 months of a persons death.

Will Dispute Lawyers Sydney Specialists

Experts in Family Provisions and Will Disputes

 

Will Disputes Lawyers Sydney, and Family Provision Experts
General QuestionsEligible PersonsCircumstances of the Applicant EvidenceCourt ProcedureCosts
General Questions
What is a Family Provision Application?

Family Provision Claims refer to an application for an order for provision to be made out of an estate for a person’s proper maintenance, education and advancement in life.

Family Provision Claims are an application to the Court to seek adequate provision from the Estate of a deceased person if a person does not believe that they have been adequately accounted for in the will of the deceased person.

Family Provision Claims are essentially will disputes by potential eligible persons who have been left out of a deceased will.

In relation to the definition of a Family Provision Claims, the following are necessary in understanding how a matter is considered to be within family provisions:

  1. In Blore v Lang (1960) 104 CLR 124 [128] (Dixon CJ) advancement in life has a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in members of the family. The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage, much like in Barlett v Commber [2008] NSW100 [50].
  2. In the Estate of Puckeridge, Deceased (1978)CA 20 SASR 72 [77] King CJ stated that the word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, whereas “proper” describes the standard, of the maintenance, education or advancement in life.
  3. The case of Alexander v Jansson [2010] NSWCA 176 [18] (Brereton J) highlights that proper maintenance” is not limited to the bare sustenance of a claimant, but requires consideration of the totality of the claimant’s position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility.
  4. As such State Lawyers considers this area of Law to be critical in contemporary society as an individual should not be left out of a will that they rightfully are entitled to under the law. State Lawyers understands the emotional strain that these proceedings may have on you and subsequently we cater to meet your needs throughout the whole process.
Why is Family Provision Law Important?

Family Provision claims are vital in Australia as individuals who are left out of a will have an avenue to dispute that will on a reasonable basis. There is a growing trend of individuals being left out of wills each year in Australia. As such Family Provision claims are essential in contemporary society as many individuals are left out of wills in Australia every year.

According to the Australian Bureau of Statistics in 2014, 153,580 Australians died and the vast majority of individuals either don’t have a will or have left out eligible persons who have a claim to the deceased wills estate. It is not uncommon that individuals are left out of wills, some examples include:

  • Children in families;
  • Individuals who have supported that deceased individual;
  • De Facto Partners; and
  • Former spouses

These individuals whilst not being named in the will of the deceased, have a claim to that estate based on a number of factors.

State Lawyers acknowledges the complexities surrounding Family Provision claims in Australia and adequately assesses each matter on a case by case basis. State Lawyers understands the importance of Family Provision claims in Australia and invests vast amount of resources in resolving these matters.

What is a Will dispute?

A will dispute is becoming more prevalent in society as individuals are increasingly more common due to the complexities surrounding Australian families. State Lawyers understands that every Australian has a right to make a will and a right to decide who they want to inherit that will. However, it is important to note that there are laws to protect people who are unfairly treated under the will and subsequently entitled in the will.

A will dispute is essentially an individual challenging a valid will under certain situations, the following grounds are reasons as to why a party may challenge a will:

  • The person lacked sufficient mental capacity or understanding to draw the will up;
  • The family members were not made aware of the provisions of the will as the proper actions were not taken to inform them;
  • There was unconscionable conduct that influenced the will maker by another person;
  • The will was not properly executed or there was evidence of tampering; and
  • There was another will that was drawn up by the deceased.

Will disputes are complex matters due to the inherit individualistic nature of each matter which is why it is now even more important to retain a lawyer with experience in the field. State Lawyers is an established firm in the legal industry which has a great reputation in resolving will disputes.

Are Will disputes evolving?

Over the years due to societal changes in Australia the legal environment surrounding Family Provision claims and will disputes has changed dramatically.

Historically, the area of family provision claims and will disputes was limited in what a potential applicant could claim on a deceased estate, this area of law has now become more complex which requires lawyer to have the appropriate skills experience to handle;

  • Cross-border dispute resolution
  • (need to expand on this and advise what will disputes have expanded to).

Nowadays the amount of individuals with wills has increased and a such this has driven legislative changes relating to Family Provision and Will Disputes.

The Family Provision Act 1982 governed family provision claims in Australia before it was repealed from 1 March 2009. The Family Provision Act 1982 was restricted in its application and its ability to cover all the relevant areas of contesting wills of deceased estates.

The Family Provisions Act has been replaced by the Succession Act 2006 (NSW), this legislation provides greater clarity and encompasses the following areas:

  • Wills
  • Family provisions
  • Intestacy

At State Lawyers our team is capable of handling all types of will dispute claims, we ensure to remain up to date with changing legislation.

Where can I find a copy of the Succession Act?
Click here to view a copy of the Succession Act 2006 (NSW).
What is the purpose of the Succession Act?

The purpose of the Succession Act 2006 (NSW) is to provide a comprehensive provision that relates to wills in New South Wales.

The Act ensures that adequate provision is made for the members of the family of a deceased person and other persons from the estate of the deceased person.

Where can I find Schedule J of the Supreme Court Rules?

Schedule J of the Supreme Court Rules can be found here.

Where can I find the Practice Note for Family Provision Claims?

The Practice Note for Family Provision Claims can be found here.

Eligible Persons
Who are eligible persons under the Succession Act?

Section 57(1) of the Succession Act the following people may apply to the Court for a Family Provision Order:

  1. A person who was the wife or husband of the deceased person at the time of the deceased person’s death;
  2. A person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death;
  3. A child of the deceased person or, if the deceased person was, at the time of his or her death, a party to a domestic relationship, a child of that relationship. However, a stepchild or a foster child is not eligible to claim;
  4. A former wife or husband of the deceased person;
  5. A person who was at any particular time:
    • Wholly or partly dependant on the deceased person; and
    • A member of the deceased person’s household at any time.
  6. A person who was living in a “close personal relationship” with the deceased person.

(2) In this section, a reference to a child of a deceased person includes, if the deceased person was in a de facto relationship, or a domestic relationship within the meaning of the Property (Relationships) Act 1984, at the time of death, a reference to the following:

(a) a child born as a result of sexual relations between the parties to the relationship,

(b) a child adopted by both parties,

(c) in the case of a de facto relationship between a man and a woman, a child of the woman of whom the man is the father or of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father (except where the presumption is rebutted),

(d) in the case of a de facto relationship between 2 women, a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996,

(e) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998).

 

De Facto Relationship

  • Section 57(1)(b) of the Succession Act deals with De Facto Relationships that relate to will disputes.
  • Pursuant to section 21C Acts Interpretation Act a person is in a de facto relationship with another person if:
    • They have a relationship as a couple living together, and
    • They are not married to one another or related by family.
  • A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else
  • In determining whether there is a de facto relationship as a couple the following matters must be taken into account but it is not necessary to establish all these matters:
    • The duration of the relationship
    • The nature and extent of their common residence
    • Whether a sexual relationship existed
    • The degree of financial dependence or inter-dependence and any arrangements for financial support
    • The ownership, use and acquisition of property
    • The degree of mutual commitment to a shared life
    • The care and support of children
    • The performance of household duties
    • The reputation and public aspect of the relationship.
  • Under the Succession Act De facto relationships are eligible persons and are able to make an application to contest the will pursuant to the ruling in Frisoli & Anor v Kourea (2013) NSWSC 116.

 

Close personal relationship

  • A close personal relationship is defined as a relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.
  • “Living together”
    • This test of whether the notion or concept of living together is satisfied is an objective one. It involves assessing the nature and extent of the claimed common residence as well as other aspects of the relationship.
    • The following elemeents are needed pursuant to the judgment in Harkness v Harkness [2011] NSWSC 1421 [42]:
      • Co-habitation, although not necessarily fulltime; however, there must be sufficient shared residence, which invites a consideration of such factors as whether the person said to be living together had a common residential address; where not absent temporarily for holiday, employment or for other reasons; and where they usually kept their clothing, domestic and personal effects, regardless of the number of days or nights spent, perhaps, at another place;
      • Physical proximity in the same residence, in the sense of simultaneous physical presence;
      • Some personal association with each other;
      • The sharing of facilities of day-to-day living on a regular and recurrent basis, often described as sharing a household, including but not limited to, the performance of domestic tasks;
      • Deciding household questions together and, whilst a social and economic partnership of the parties is not required, there should be a sharing of the burden of maintaining a household;
      • Regarding the place, or places, in which the two adults live as “their home”;
      • There being no present intention of definite or early removal, a continuity of association with the place; remaining for an undetermined period, not infrequently, but not necessarily combined with design to stay permanently

 

Relationship as a couple

  • In determining whether 2 persons have a relationship as a couple for the purpose of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
    • the duration of the relationship,
    • the nature and extent of their common residence,
    • whether a sexual relationship exists,
    • the degree of financial dependence or interdependence, and any arrangements for financial support, between them,
    • the ownership, use and acquisition of property,
    • the degree of mutual commitment to a shared life,
    • the care and support of children,
    • the performance of household duties,
    • the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.’
Can I make a claim?

In order to apply for a Family Provision Claims or contest a will there are set criteria that need to be satisfied. An eligible person can apply to a Court to make a Family Provision Order in respect of a deceased estate.

A person who is not eligible has no entitlement to contest a will and bring a Family Provision Application to Court. However, you still may be in a position to make a Family Provision Claim as every matter is different.

To find out whether you are eligible to claim a Family Provision Order, please give us a call on (02) 9280 3511 for a free consultation to discuss your matter. State Lawyers are more than happy to speak to you about your matter and we will endeavor to do our best to provide an accurate assessment of your matter.

Adequate Provisions to make a claim?
  • To make out a successful claim under the Succession Act a person must either be a blood relative or have a close relationship with the deceased person and that must not have received adequate or no provision regarding the estate of the deceased person.
  • To simplify what elements need to be established inter alia to have a successful claim:
    • The claimant must establish eligibility
    • If eligibility is established, the Court must determine if the claimant has been left without adequate provision.
    • If adequate provision has not been left, the Court determines what provision should be provided out of the estate.
  • Adequate Provision
    • “Adequate” – The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, whereas “proper” describes the standard, of the maintenance, education or advancement in life.
    • The case of Brennan v Mansfield & Ors [2013] notes that the notion of “adequate” is subjective matter and is determined by a case by case basis.
    • Pontifical Society for the Propagation of the Faith v Scales notes that the term “adequate” and “proper” must be considered in the context of:
      • The Applicant’s age, sex, condition, ‘mode of life and situation generally’
      • The nature, extent and character of the estate and other claims upon it; and
      • What the will-maker regarded as superior claims or preferable dispositions.
    • State Lawyers experience in legal research and litigation are paramount in dealing with Family Provision Claims. Due to the subjective nature of “adequate” it is important to have experienced lawyers who know what they are doing to manage the complexities of your case. As such we have many resources at our disposal to manage your matter efficiently and effectively.
What is the previous test for eligibility?
  • Under the Family Provision Act 1982 the two-stage process is the previous test utilised by the Courts in dealing with Family Provision Claims are identified as follows:
  • The case of Singer v Berghouse highlights the previous test in determining Family Provision Claims under the previous Act. The following matter underlines the two-stage process in a simplified manner:
    • Is there an inadequate provision for the Applicant’s proper maintenance, education and advancement in life under rules or intestacy and wills? This is a question of fact.
    • If the first stage is satisfied, then it is up to the discretion of the Court to determine if a provision ought to be made out of the deceased estate in favour of the Applicant.
  • Whilst, this test is not utilised by the Courts it is nevertheless important to understand the rationale in coming to conclusions in Family Provision Applications and the reasoning behind the orders made in Family Provision Claims.
Circumstances of the Applicant
Does living together with someone without being married impact my claim?
  • Under the Property (Relationship) Act 1984 s 3(1) Cohabitation or otherwise known as a close personal relationship is the following:
  • A close personal relationship is defined as a relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.[2]
  • “Living together”
    • This test of whether the notion or concept of living together is satisfied is an objective one. It involves assessing the nature and extent of the claimed common residence as well as other aspects of the relationship.
    • Need the following elements:
      • Co-habitation, although not necessarily fulltime; however, there must be sufficient shared residence, which invites a consideration of such factors as whether the person said to be living together had a common residential address; where not absent temporarily for holiday, employment or for other reasons; and where they usually kept their clothing, domestic and personal effects, regardless of the number of days or nights spent, perhaps, at another place;
      • Physical proximity in the same residence, in the sense of simultaneous physical presence;
      • Some personal association with each other;
      • The sharing of facilities of day-to-day living on a regular and recurrent basis, often described as sharing a household, including but not limited to, the performance of domestic tasks;
      • Deciding household questions together and, whilst a social and economic partnership of the parties is not required, there should be a sharing of the burden of maintaining a household;
      • Regarding the place, or places, in which the two adults live as “their home”;

There being no present intention of definite or early removal, a continuity of association with the place; remaining for an undetermined period, not infrequently, but not necessarily combined with design to stay permanently.

What is the significance of a person having a disability?
  • The Court takes into account disabilities in a Family Provision Claims:
    • Any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated pursuant to section 60(2) of the Succession Act.
  • The Applicant has the onus of proving that they are eligible under the provisions.
  • Disability is taken account by the Courts in determining the amount that should be awarded to the Applicant for adequate provision under the deceased’s estate.

 

  • Disability is defined in the Disability Discrimination Act 1992 (Cth):

“disability “, in relation to a person, means:

(a) total or partial loss of the person’s bodily or mental functions; or

(b) total or partial loss of a part of the body;

(c) the presence in the body of organisms causing disease or illness; or

(d) the presence in the body of organisms capable of causing disease or illness; or

(e) the malfunction, malformation or disfigurement of a part of the person’s body; or

(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future (including because of a genetic predisposition to that disability); or

(k) is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

Is Age a factor in Family Provision Claims?
  • Age is not a detriment in making a Family Provision Claims.
  • Children may make a Family Provision Claims under adult supervision regardless of their age. Children may claim appropriate to their needs that is adequate provision from the deceased estate.
  • Age is essentially a non-factor as an eligible person under s 57(1) of the Succession Act includes a person who was at any particular time:
    • Wholly or partly dependant on the deceased person; and
    • A member of the deceased person’s household at any time.
  • Dependant refers to any person who is substantially maintained or supported by the deceased at the time of death;
    • A person under the age of 18;
    • The parent of a surviving child under 18 years old; and
    • A parent of that deceased person.
Does the Court take into account prior contributions?
  • The Court takes into account any prior contributions made by the Applicant to the acquisition of the deceased estate. Any prior contribution is taken into account by the Court whether that contribution is financial or otherwise.
  • The case below highlights the importance of disclosing and proving prior contributions as it will assist the Plaintiff in claiming are more adequate representation to the deceased estate.
  • Carey v Robson & Anor and Nicholis v Robson & Anor (2009)
    • Two sisters (Plaintiff) claimed for their Father’s estate (20%). The Defendant was the beneficiary for the remainder (80%). The Defendant’s wife works over many years had allowed the deceased to retain the property and had contributed to the value of the business operating on the land.
    • The Defendant did not pursue education and career opportunities to build the farming business and this contribution were recognised by the testator.
    • Plaintiff’s showed that they were clearly in a superior financial situation to the Defendant.
    • Plaintiff’s had to pay their own legal costs for the claim and also pay the Defendant’s costs on a party/party basis. The inheritance under their Father’s Will and their own disclosed financial situation the Plaintiffs were deemed to be in a satisfactory financial situation to bear the burden of the costs.
  • Practice Note 23 – Mentioned in Carey v Robson
    • If any Affidavits include irrelevant material, the Court may order the party responsible for that Affidavit pay:
      • His/hers own costs of preparing the Affidavit and any time spent dealing with the Affidavit in Court;
      • The indemnity costs of other parties to the proceedings in responding to the Affidavit.
Can my conduct impact on my claim?

Disentitling Conduct or Disqualifying Conduct

  • The Court may refuse to make any order provision or reduce the amount of a provision if the character or conduct of the Applicant before and after the deceased died is disqualifying.
  • Examples include but are not limited to:
    • Adultery
    • Desertion
    • Violence or threats
    • Estrangement

Estrangement

  • The cause of estrangement will be important but an assumption should not be taken when deciding fault. It would be appropriate to look at the causes of the estrangement and whether the actions of the parties can be justified.
  • Andrew v Andrew [2012] NSWCA 308 [57]:
    • Testator’s letter setting out reasons for disinheriting son not sufficient to disentitle the applicant, although poor state of relationship “operates to restrain amplitude in the provision to be ordered”.
    • Estrangement described as “the condition which results from the attitudes or conduct of one or both parties”.
  • Estrangement does not necessarily terminate a testator’s obligation to provide for an eligible person. It is emphasised however, that each claim for family provision claims is considered on its own facts and circumstances by the Court in exercising its discretionary jurisdiction.
Does my arrangement as a tenant in common impact on my application?
  • A tenant in common means that:
    • You are able to choose to own the property either equally or unequally depending on the terms agreed by the parties.
    • If one of the owners die, then that owner’s will determine who gets the deceased estate’s share. The deceased share of the estate does not automatically transfer to the other owner. This is different to joint tenants where the matter automatically transfers the property to the other owner.
  • If a tenant in common dies, the deceased owner’s share of the property will be treated as part of the deceased’s estate in a Family Provision Claims.
  • If the deceased did not have a will then distribution of the share of the property will be in accordance to the rules of intestacy. If the deceased had a will at the time of his/her death than the deceased share of the property will therefore pass in accordance with that will.
Does my arrangement as a joint tenant impact on my application?
  • Due to the changing complexities relating to family arrangements in Australia, it is not surprising that there would be a rise in joint tenancy.
  • Joint tenancy is essentially the holding of an estate jointly by two or more parties, the share of the estate passing to the other or other on death.
  • This is highlighted in the case of Cetojevic v Cetojevic [2007] NSWCA 33.
What are death benefits?
  • A deceased person’s superannuation entitlement is paid as a death benefit by the trustee of their super fund.
  • A binding death notice (look up your fund’s rules and regulations) requires the trustee to pay a death benefit to specific dependants.
  • A death benefit notice is only effective if the notice meets the strict conditions set out in the Superannuation Industry (Supervision) Act 1993 and Superannuation Industry (Supervision) Regulations.
    • The Succession Act 2006 (NSW) à may override the above Act in certain situations.
    • A superannuation death benefit nomination must constitute a broader estate planning strategy to ensure that it is not undermined by a Family Provision Claims.
  • Death benefits are considered relevant property failing within s 75 of the Act if they meet the criteria set out in that provision.
Can superannuation be classified as property for the purposes of a Family Provision Claims?
  • Superannuation of a deceased individual is considered an example of a notional estate.
  • Superannuation is considered to be a “relevant property transaction” under the Succession Act 2006 (NSW) s 76(2)(e).
  • Superannuation is usually dealt with outside the provision of your will as it is you don’t own your superannuation rather your superannuation is controlled for you by a trustee. As such a Family Provision claims cannot take into account superannuation in all States. The exception to this rule is within New South Wales where superannuation is considered to be a notional estate pursuant to Succession Act 2006 (NSW).
  • Kelly v Deluchi [2012] NSWSC 841
    • In the following case, the deceased created a will leaving a pecuniary legacy of:
      • $50,000 to his son (Mark);
      • $75,000 to his son (Peter); and
      • $75,000 to his daughter (Michelle)
      • Giving further pecuniary to a friend;
      • The proceeds of a life policy to his grandchildren and any left over to his wife.
    • The estate was insufficient to pay all the legacies under the will.
    • As such the will was dispute accordingly.
    • His Honour held:
      • Peter should receive $150,000;
      • Michelle should receive $100,000
    • This case illustrates that since the will was insufficient to pay off the amounts stated, the Court held that superannuation should be used as a notional estate to pay off the remaining individuals who had a claim to the will.
What is a Notional Estate?
  • Notional Estate refers to property designated by a notional estate order as notional estate of the deceased person (section 3 Succession Act 2006 (NSW).
  • In simple terms a notional estate is:
    • The Court may look beyond the property and assets of the deceased person at the time of their death. The Court may deem certain property not in the will of the deceased to be a relevant property transaction and subsequently be subject to a family provision order to satisfy the will dispute.
  • The following provisions are relevant in notional estates in Family Provision Claims:

 

78 Notional estate order may be made only if family provision order or certain costs orders to be made

(1) The Court may make an order designating property as notional estate only:

(a) for the purposes of a family provision order to be made under Part 3.2, or

(b) for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person.

Section 63 (5) enables a family provision order to be made in relation to property designated as notional estate of a deceased person. Section 99 enables the Court to order that costs be paid out of the notional estate of a deceased person.

(2) The Court must not make an order under subsection (1) (b) for the purposes of an order that the whole or part of an applicant’s costs be paid from the notional estate of the deceased person unless the Court makes or has made a family provision order in favour of the applicant.

 

80 Notional estate order may be made where estate affected by relevant property transaction

(1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that the deceased person entered into a relevant property transaction before his or her death and that the transaction is a transaction to which this section applies. The kinds of transactions that constitute relevant property transactions are set out in sections 75 and 76.

(2) This section applies to the following relevant property transactions:

(a) a transaction that took effect within 3 years before the date of the death of the deceased person and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order,

(b) a transaction that took effect within one year before the date of the death of the deceased person and was entered into when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education or advancement in life of any person who is entitled to apply for a family provision order which was substantially greater than any moral obligation of the deceased person to enter into the transaction,

(c) a transaction that took effect or is to take effect on or after the deceased person’s death.

(3) Property may be designated as notional estate by a notional estate order under this section if it is property that is held by, or on trust for:

(a) a person by whom property became held (whether or not as trustee) as the result of a relevant property transaction, or

(b) the object of a trust for which property became held on trust as the result of a relevant property transaction, whether or not the property was the subject of the relevant property transaction.

  • Some relevant cases regarding Notional Estate:
    • Phillip v James [2012] NSWSC 688
      • Notional Estate = $1.4m
      • Three children approximately as follows; Gary $702,000; Gaye $695,000 and the Plaintiff $164,603.
      • Held: The Plaintiff had not specifically identified property against which notional estate was sought the Court had no jurisdiction.
    • Davidson v Samson [2012] NSWSC 481
      • Estate = $2.4m
      • Plaintiff = 13-year-old son of previous husband
      • Estate to be held by trustees – $150,000 immediately; balance payable within 6 months of the Plaintiff turning 21 or the Defendant ceasing to reside in the matrimonial home.
    • The property that may be subject to a family provision order is property that on a grant of probate or letters of administration vests in the executor or administrator pursuant to section 63 of the Succession Act.
    • Importantly, an “omission” is sufficient to trigger a “Relevant Transaction” – this means that simply by not doing something (e.g. not making an election), the Testator may be taken to have entered into a Relevant Transaction.
    • The notional estate provisions are set out in Part 3.3 of the Succession Act.
    • The provisions empower the court in limited circumstances to designate property “notional estate” from which a family provision order or costs order may be made pursuant to section 78 of the Succession Act .
    • The court must first be satisfied that the estate, if any, is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or provision should not be made wholly out of the deceased person’s estate because there are other persons entitled to apply for family provision orders or because there are special circumstances pursuant to section 88 of the Succession Act.
    • An order may designate as notional estate property only to the extent that is necessary for provision to be made or costs paid or both pursuant to section 89(2) of the Succession Act
    • Two examples of property that may in limited circumstances be designated as part of the notional estate are:
      • Property of which the deceased was a joint tenant at the time of his/her death. Property held in joint tenancy (as opposed to tenancy in common) passes automatically to the surviving tenant when a tenant dies. Thus joint tenancy property does not form part of the estate. There is authority that joint tenancy property may be designated as notional estate where full valuable consideration was not given for not severing the joint tenancy.
      • Superannuation, although there is some tension where a binding death benefit has been made under Commonwealth legislation, which was held in Cabban v Cabban [2010] NSWSC 1433.
    • At State Lawyers we are specialised and committed firm that is focused on the client’s needs. We provide personalised services rather than large corporate bodies who may see your claim as just another number. We seek to provide the best possible service throughout the whole case with updates on your matters which ensures that you are understand how your case is managed.
Do financial resources affect a Family Provision Order?
  • In determining Family Provision Claims the following factors must be taken into account:
    • Applicant’s financial situation (includes ownership of property)
    • Earning potential of their current employment;
    • Requirements for further medical care and support; and
    • Financial circumstances of their partner at the time of the deceased estate being contested.
  • Financial resources can include future financial needs, but it must be noted that the Court will only award future financial needs on a case by case basis.
    • The financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate pursuant to section 60(2)(d) of the Succession Act.
  • Future financial resources are indicative of the financial needs of the claimant in a Family Provision Claim.
  • At State Lawyers we have dedicated staff who determine the financial resources of the matter to ensure that the maximum amount can be claimed in your case.
Evidence
General Evidence?
  • Practice Note enables informal proof of certain matters, unless the Court orders otherwise, or reasonable notice is given that strict proof is necessary:
    • A kerbside appraisal by a real estate agent of any real property.
    • An estimate of the value, or a monetary amount, for the nonmonetary assets of the estate other than real estate;
    • Internet, or other media, advertisements of the asking price of real estate;
    • The plaintiff’s, or beneficiary’s best estimate of costs or expenses of items the plaintiff or the beneficiary wishes to acquire;
    • The plaintiff’s, or the beneficiary’s, best estimate of costs or expenses of any renovation or refurbishment of property the plaintiff or the beneficiary wishes to incur;
    • A description by the plaintiff, or by the beneficiary, of any physical, intellectual, or mental, disability, from which it is alleged the plaintiff, or the beneficiary, or any dependant of the plaintiff or beneficiary, is suffering, together with a copy of any medical, or other, report, in support of the condition alleged.
  • The Practice Note refers to Expert Evidence where it may sometimes be necessary.
Evidence of the Applicant?
The Applicant must file the following evidence in Family Provision Claims in Sydney:

  • Summons;
    • The summons must attach a copy of the Affidavit in which the Applicant must with the Summons.
    • A notice of eligible person, including the name and, if known, the address of any person who is, or who may be, an eligible person. A copy of the notice is to be attached to the Summons or to the plaintiff’s principal affidavit.
    • A copy of an affidavit setting out an estimate of the Applicant’s costs and disbursements, calculated on the ordinary basis, up to, and including, the completion of a mediation.
  • Consent Orders;
    • The application was made within time;
    • The Applicant is an eligible person;
    • The Applicant has served a notice identifying all other eligible persons on the administrator at the time of serving the Summons;
    • The administrator has filed the administrator’s affidavit and the affidavit of service of the notice of the plaintiff’s claim on any person who is, or who may be an eligible person, as well as upon any person beneficially entitled to the distributable estate, and any person holding property of the estate, as trustee or otherwise; and
    • The administrator has filed an Appearance.
  • The Applicant’s best estimate of costs or expenses of items the Plaintiff wishes to acquire.
  • Any expert evidence that may be used in the proceedings.
Evidence of Respondent?
  • At the first directions hearing, the Respondent (administrator or executor) will be ordered to serve affidavits in accordance with Practice Note.[1]
  • The affidavit of the administrator/executor must include the following matters:
    • A copy of the deceased’s Will and the probate or letters of administration, if granted (if a copy is not already annexed to the Applicant’s affidavit);
    • A description of the nature and value of the assets and liabilities of the deceased at the date of death. (A copy of the inventory of property attached to the probate or letters of administration will suffice so far as the property of the deceased at the date of death unless other assets have been discovered);
    • What is, or is likely to be, the nature, and an estimate of the value, of:
      • The assets and liabilities of the deceased at the date of swearing the affidavit;
      • Any property of the deceased that has been distributed at any time after the death of the deceased and the date of the distribution of that property;
      • The gross distributable estate (omitting the costs of the proceedings).
    • A description of the nature, and an estimate of the value of any property which, in the administrator’s opinion, is, or may be, the subject of any prescribed transaction or relevant property transaction;
    • The name and address of every person who, in the administrator’s opinion, is holding property as trustee, or otherwise which is, or may be, the subject of any prescribed transaction or relevant property transaction;
    • Any testamentary and other expenses, or other liabilities of the estate that have been paid out of the estate of the deceased, including the amount, if any, paid for, or on account of, the administrator’s costs of the proceedings;
    • Whether any commission is to be sought by the administrator, and if so, an estimate of the amount proposed to be sought;
    • The names and address of every person who, in the administrator’s opinion, is, or who may be:
      • An eligible person;
      • An eligible person under a legal incapacity;
      • A person beneficially entitled to the distributable estate;
      • A person holding property as trustee or otherwise.
    • In addition, the administrator/executor must also provide:
      • The administrator/executor must also provide an affidavit of service of a notice of claim on various persons in accordance with Schedule J of the Supreme Court Rules and paragraph 9.2 of the Practice Note.
      • An affidavit in reply to the plaintiff’s affidavit in chief, which may contain facts contradicting facts contained in the plaintiff’s affidavit or other matters the administrator/executor will rely upon;
      • An affidavit, if necessary on information and belief, which identifies each beneficiary who is raising, or is likely to raise, his, her, or its, financial, material, or other, circumstances as a competing claimant, and each beneficiary who is not raising, or is not likely to raise, those circumstances;
      • An affidavit setting out an estimate of the administrator’s costs and disbursements, calculated on the indemnity basis, up to, and including, the completion of mediation.
Expert Evidence?
  • Expert evidence may sometimes be necessary in Family Provision claims in Sydney.
  • If expert evidence is necessary in Family Provision claims, then Practice Note Eq 5 will apply.
  • Expert Evidence is also prevalent in determining Family Provision claims, the evidence of property valuers for example would be of considerable importance in distinguishing the purported price of a deceased estate. One party may claim that the value of the estate which might be proportionately lower than the real value of the property but expert evidence in the form of a qualified property valuer would be vital to how much one party can claim out of the disputed will.
  • State Lawyers have utilised the evidence of experts in previous proceedings in order to settle the matter. At State Lawyers we take a conscious effort to diminish your legal costs but also see the value of expert evidence based on a case by case bases. We have an active list of experts in different areas of expertise at our disposal, so no matter your case we have different avenues to resolve any issue that may arise in the proceedings.
  • It is essential that any party seeking to call an expert witness must first seek directions pursuant to UCPR 31.19:

 

31.19 Parties to seek directions before calling expert witnesses

(1) Any party:

(a) intending to adduce expert evidence at trial, or

(b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,

must promptly seek directions from the court in that regard.

(2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.

(3) Unless the court otherwise orders, expert evidence may not be adduced at trial:

(a) unless directions have been sought in accordance with this rule, and

(b) if any such directions have been given by the court, otherwise than in accordance with those directions.

(4) This rule does not apply to proceedings with respect to a professional negligence claim.

Does the value of the property impact the Claim?
  • The value of the property in Family Provision Claims are important as they essentially dictate the amount an individual can claim from a deceased estate. Estates range in price, for example smaller estates are valued anywhere between $400,000 and $750,000.
  • There is a general preference that where the net distributable estate excluding the costs of the proceedings is $400,000 or less than the matter would be referred to an informal settlement conference. This settlement conference would be before the Family Provision List Judge.
    • It is important to note that this figure is merely a general number that the Court’s use, there is no boundary as to the Courts discretion for example $500,000.
    • The legal representatives of the parties also influential as to whether the matter would be suited to an Informal Settlement Conference to his Honour.
  • Informal Settlement Conferences take place in Court with his Honour deciding how the matter should proceed. Both parties negotiate and advise his Honour if the matter can be settled or not.
  • The value of the property is usually not agreed upon by both parties as there is contrasting figures as to the real value of the property.
  • As such it is important to get a property valuer to value the property to determine the accurate figure on the price of the deceased estate.
  • At State Lawyers we have dealt with disputed quantum matters to determine the real value of a disputed claim.
  • If the matter involves property valued at $400,000 and up to $1 million, the Family Provision List Judge will refer the matter to Court annexed mediation. However, if the parties agree beforehand the matter may be heard by a private mediator.
  • Matters involving property over $1 million the Family Provision List Judge will ordinarily require the parties to arrange a private mediation.
Court Procedure
How do I commence proceedings?
  • Proceedings in Family Provision Claims are commenced by way of Summons served by the Plaintiff. A Summons is essentially announcing a date which the person summoned must appear in Court.
  • The Plaintiff must also serve the following documents with the Summons:
  1. A copy of the affidavit of the plaintiff adapted from the form in Annexure 1 to this Practice Note.
  2. A notice of eligible persons, including the name and, if known, the address of any person who is, or who may be, an eligible person. A copy of the notice is to be attached to the Summons or to the plaintiff’s principal affidavit.
  3. A copy of an affidavit setting out an estimate of the plaintiff’s costs and disbursements, calculated on the ordinary basis, up to, and including, the completion of a mediation
  • The Summons commencing the Family Provision claims should identify the date of death of the deceased in respect to the estate being claimed.
  • After filing the Summons, it will be heard before the Family Provision List Judge no later than the first Friday after 28 days of the date of its filing (first direction hearing).
  • However, if the prescribed period for making the Family Provision Claims is about to expire and proceedings are being commenced to preserve rights, then the Plaintiff must file and serve two Affidavits no later than 5 working dates before the First Direction Hearing.
  • At State Lawyers we have considerable experience in drafting legal documents for Court proceedings, our clients rest assured that we have a vast legal team looking after their matter. As such our clients are confident that State Lawyers will settle their matter efficiently and hassle free.
What is a Statement of Claim?
  • It is important to note that a Plaintiff’s claim may be a contested probate claim with a default family provision claim. In cases such as this, the Plaintiff should file a Statement of Claim that should relate to the probate claim and the family provision claim rather than the Family Provision Summons.
  • In such cases the matter will be listed in the Probate List instead of the Family Provision List. The Family Provision List is specifically for Family Provision applications as opposed to varied applications.
  • A Statement of Claim should also be filed by the Plaintiff if the Plaintiff is entitled to an equitable estoppel claim with a default provision claim.
Matters dealt in the Equity Division?
What is Mediation?
  • Mediation involves and requires all parties to meet with the lawyers and a Court-appointed mediator to sit in a room to discuss the matter with the overarching purpose would be to resolve the matter where all parties are contempt with the outcome pursuant to section 98 of the Succession Act.
  • This alternative to Court vastly reduces the legal costs in a Court whilst also improving the successful rate of both parties agreeing to certain terms to the contested estate.
  • A Court will order that a claim may be mediated before a claim may be made out.
  • In 2012 the Supreme Court of NSW reported that 50% of all matters commenced in the Family Provision List were resolved on the day of mediation and that a further 10% settled shortly after.
  • State Lawyers have vast experience in mediation processes with successful outcomes for both parties. We understand that compulsory mediation in Family Provision matters further signifies the importance of having experience lawyers to be able to handle your matter both professionally and diligently.
What is Court Annexed Mediation?
  • Mediation is generally conducted outside of a Court room however, there may be instances where a Court room may be the suitable place to try to settle the matter.
  • Court-annexed mediation is where a registrar or another Court officer of the Court is the mediator.
  • When both parties Affidavits have been filed than the matter will be referred to mediation. The Supreme Court has a court-annexed mediation facility which is charged at no extra cost to the parties.
  • Court-annexed mediations are usually listed at 9:30am or around 2pm where the room is usually limited to a half-day but matters are generally resolved much quicker.
  • A date and time for a Court-annexed mediation is given during the directions hearing. As such it is imperative to have all your available times and dates to allow the Court to allocate a room to facilitate the mediation process.
  • Next available dates for Court-annexed mediation is located on the daily court list e.g. Supreme Court
  • If a settlement is agreed between both parties at a Court-annexed mediation, then the Registrar may facilitate the filing of orders that were reached by the parties and finalise the matter. This is one of the benefits of participating in a Court-annexed mediation as opposed to regular mediation. However, it must be noted the Registrar does not have the power to approve any release of the estate even if it is settled at the mediation.
  • A private mediator may also be provided if both parties pay and have their allocated times and dates ready before the directions hearing to stand the matter over.
  • It is important to note that the administrator’s legal representative is required to provide the details of any beneficiaries who will attend the mediation no later than 7 working days prior to the mediation in writing.
  • At State Lawyers we have many experienced solicitors who have attended mediations with clients and settled the matter achieving the best outcome for our client. We actively attempt to have matters resolved early in order to reduce the legal costs associated with litigation.
What is Private Mediation?
  • Private mediation may also occur during a family provision application. However, a private mediator may be allowed if both parties agree and pay the necessary costs associated. Furthermore, both parties must provide the decided dates and times where both parties are satisfied that neither party is disadvantaged. The dates and times agreed upon must be ready before the directions hearing to inform the Court that the parties are privately mediating and standing the matter over.
  • The costs associated with private mediators range between hourly rates, daily rates or even fixed costs with a set minimum number of hours.
  • There are both advantages and disadvantages to private mediators and at State Lawyers we aim to ensure the best possible avenue to our clients that will ensure the highest settled amount.
  • Mediation may be a daunting experience for individuals who don’t have previous experience but State Lawyers assists to make this process as pain free as possible.
  • State Lawyers have experience dealing with both private mediators and Court-annexed mediators. At State Lawyers we understand that your time is valuable to you and we ensure that we communicate throughout the whole process answering any questions that you may have.
Where to find the next available date for mediation?
  • The next available dates for Court annexed mediation are found on the daily list of the Courts website, for example the Supreme Court of New South Wales.
  • Court annexed mediation listings are provided during the Court proceedings by his Honour.
Who is the Family Provision List Judge?
  • The Practice Note No. SC Eq 7 notes that from 1 March 2013 all Family Provision applications will be managed by the Family Provision List Judge in the Family Provision List each Friday.
  • Notice of Motions will be listed at 9:30am whilst Directions will be listed from 10:00am.
  • Only cases involving solely claims for Family Provision are case managed in the Family Provision List. For example, a summons for a declaration that a will is invalid with a secondary claim of a Family Provision order should not be the Family Provision List rather it should be placed in the General or Probate List of the Equity Division.
  • The Family Provision Directions List
    • This list is directly managed by Justice Hallen.
    • Justice Hallen requires the papers and proposed orders to be provided to his Associate before midday Wednesday.
    • Justice Hallen has prepared draft orders for the first, second and third directions hearing. These draft orders are draft only and may be amended to suit the matter at hand but the parties must explain why they are deleting standard orders in the draft orders.
  • Contact details for Justice Hallen
    • Call: (02) 9230 8615
    • Fax: (02) 8113 6590
  • Associate to Justice Hallen:
    • Hilary_monteith@courts.nsw.gov.au
What are Consent Orders?
  • Consent Orders are essentially an agreement between both parties on specific aspects in the case. These consent orders are proposed by both party’s lawyers and are conducted in the view of speeding up the process further reducing any delay.
  • Consent Orders finalising the proceedings must address the following matters:
    • The application was made within time;
    • The plaintiff is an eligible person;
    • The plaintiff has served a notice identifying all other eligible persons on the administrator at the time of serving the Summons;
    • The administrator has filed the administrator’s affidavit and the Affidavit of service of the notice of the plaintiff’s claim on any person who is, or who may be an eligible person, as well as upon any person beneficially entitled to the distributable estate, and any person holding property of the estate, as trustee or otherwise;
    • The administrator has filed an Appearance.
Costs
What costs are associated with Family Provision Claims?
  • State Lawyers are an experience team of lawyers dedicated to meeting and exceeding the client’s demands. We go the extra mile in order to ensure excellent quality work in an effective manner.
  • At State Lawyers we operate on a no-win no-fee basis. That means if you don’t win the case then there is nothing to pay for in terms of costs. This means that there is a lot less risk for you when undertaking litigation.
  • If you are successful in your Family Provision Claims, then you will receive most of the costs of the estate,
  • Costs are usually awarded to Plaintiff’s that are successful on a party/party basis. It is rare that the Court would not allow the Plaintiff to recover its costs.
  • If the claimant is unsuccessful than that person may expect to pay all their own legal costs as well as any costs of the estate by virtue in defending the claim.
  • The costs of the executor defending the proceedings are usually ordered to be paid out of the estate on an indemnity basis as usually the executor has no choice but to incur these costs in defending the estate and these costs are paid from the estate as they are incurred.
  • The Succession act 2006 (NSW) is the provision that deals with costs for Family Provision Claims. Under this Act the Court has a wide discretion to in awarding costs for Family Provision Claims.
  • Possible Outcomes in a Court Order may include:
    • the losing party pays the costs of the winner (party to party), in addition to their own costs (solicitor/client);
    • each side pays their own costs;
    • payment of a part of the other side’s costs they incurred on a particular issue;
    • costs of one or both sides may come out of the estate, or
    • no costs are paid out of the estate
    • other – “in such manner as the Court thinks fit

What factors can affect decisions on costs?

  1. Whether a litigant has given any kind of settlement offer to their opponent, that is whether a party made an offer of compromise to bring the matter to an end, and if so what happened.
  2. How genuine was the offer? Was it refused? If so was it unreasonable in the circumstances?
  3. Matters such as the willingness of each party to compromise and what efforts did they go to in order to avoid a court hearing may come into it.
  4. Whether the person starting the legal action acted reasonably in doing so.
  5. Whether the defending party acted reasonably in defending their position.
  6. In reference to point 2 above, whether the claim was frivolous, vexatious, made without any reasonable chances of success.
  7. Whether the applicant was guilty of some improper conduct during proceedings.
  8. Whether the estate was a small one; such as where the amount available for distribution is less than $500,000. In these cases, the Practice Note (see above) states that the Court may cap costs.
  9. However just because an estate is small, does not excuse unreasonable or uncooperative conduct of a party – if so they may find themselves up for costs.
  10. In circumstances of modest estates with beneficiaries of modest means, where each person’s claim taken together may be way out of proportion to the size of the estate.

 

Important Cases – Costs

  • Carey v Robson & Anor and Nicholis v Robson & Anor (2009)
    • Two sisters (Plaintiff) claimed for their Father’s estate (20%). The Defendant was the beneficiary for the remainder (80%). The Defendant’s wife work over many years had allowed the deceased to retain the property and had contributed to the value of the business operating on the land.
    • The Defendant forgone education and career opportunities to build the farming business and this contribution were recognised by the testator.
    • Plaintiff’s showed that they were clearly in a superior financial situation to the Defendant.
    • Plaintiff’s had to pay their own legal costs for the claim and also pay the Defendant’s costs on a party/party basis. The inheritance under their Father’s Will and their own disclosed financial situation the Plaintiffs were deemed to be in a satisfactory financial situation to bear the burden of the costs.
  • Practice Note 23 – Mentioned in Carey v Robson
    • If any Affidavits include irrelevant material, the Court may order the party responsible for that Affidavit pay:
      • His/hers own costs of preparing the Affidavit and any time spent dealing with the Affidavit in Court;
      • The indemnity costs of other parties to the proceedings in responding to the Affidavit.
    • Collet v Knox [2010] QSC 132
      • Court’s growing concern that legal costs can be disproportionate to the size of the estate or the benefits ultimately received by the Applicant.

“As a general proposition, I consider it accurate to assert that before embarking on expensive litigation the executors need to give careful consideration to what amounts they will expand and how best they should discharge their duties”.

What is a Costs Agreement?
  • At State Lawyers we offer a costs agreement on a ‘No-win No-fee’ bases, which means that you will not pay costs of litigation if we do not win your case. At State Lawyers we firmly believe that every Australia has the right to legal representation irrespective of your financial situation.
  • No win no fee bases means that we will not charge you for any legal costs if your matter is unsuccessful, however, if your matter settles than we charge a ‘success fee’ of up to 25%.
  • In order for us to act for you Family Provision Claims we will need to get a signed authorisation just noting that you have nominated State Lawyers as your principal solicitor.
What is the Settlement Process?

The following are necessary for a settlement of a family provision claims:

  • The person must be eligible under s 57 of the Succession Act 2006 (NSW);
  • Mediation needs to be attended by both parties to the proceedings;
  • The value of the claim must be stated as the value which the Plaintiff is pursuing from the deceased estate.

 

The Settlement Process

  1. Negotiation
    1. Negotiation is necessary in to solve the matter.
    2. Most matters are settled before they go to Court as both parties negotiate and meet at a settlement figure that both parties can be satisfied with.
    3. State Lawyers has negotiated a vast amount of matters and subsequently is experienced in negotiating to get the best outcome for our clients.
  2. Offer of Settlement
    1. An offer of settlement is made by one party in the proceedings to finalise the matter before it proceeds any further. The parties agree to a figure which they are satisfied with and the matter is resolved and finalised.
  3. Mediation
    1. Mediation is an essential process in Family Provision claims which is mandatory. The matter is heard by an independent mediator by either the Court or an agreed mediator by both parties.
  4. Litigation
    1. If the matter does not settle in the previous dispute resolution avenues than the matter is litigated.
    2. The application should be made to the Court within 12 months of the deceased estate and before any of the assets of the deceased are distributed.
What is the obligation of the Administrator?
  • An Administrator includes an executor and where appropriate, the person appointed to represent the estate of the deceased person for the purpose of the hearing.
  • The Administrator of an estate is essentially the term referring to a person who has been appointed by the Court to administer the estate of a deceased person who left no will.
  • An Executor/Administrator obligations include:
    • The executor/administrator is obligated to uphold the will to ensure that all evidence of the beneficiaries is noted to the Court;
    • Allegations of facts that dispute the Affidavit of the Claimant;
    • The likely value of the distributed estate;
    • The likely value of the assets and liabilities in the estate;
    • All people who are beneficially entitled to the deceased estate;
    • Serving a notice to all person eligible under the will.
  • If an Administrator/executor acts in breach of their statutory duties and obligations may be personally liable to any successful Applicant in the proceedings who has suffered loss as a result of the breach.
  • Furthermore, the Administrator must not distribute the property in the estate until:
    • The time specified in the notice has expired; and
    • At least 6 months after the deceased’s death.
  • The Administrator cannot make an attempt to prematurely distribute the deceased estate in an attempt to trump an Applicant’s Family Provision Claim in Sydney. An Administrator makes distribution at their own danger:
    • If the Administrator has notice from any source of a likely or intended claim; and
    • The 12 month statutory period (NSW) for making claims has not expired.
Should costs be proportionate?
  • In deciding costs, the Court takes into account section 60 of the Civil Procedure Act 2005 (NSW).
  • Section 60 contains the following provision:

60 Proportionality of costs

In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.

  • The importance of this section in Family Provision Claims is that the objective of the Court in resolving disputes between parties must be “proportionate to the importance and complexity of the subject-matter in dispute”.
  • It is imperative to note that in Family Provision claims is not the value of the estate rather it is the Applicant’s entitlement to provision out of that estate.
  • State Lawyers has experience in dealing with matters relating to costs with and acknowledges that costs are a real issue in legal proceedings. As such State Lawyers settles your case with costs that do not exceed the value of the claim.