Family Provision Claims

The community commonly use the term “contesting a will” to mean family provision applications or claims. Lawyers refer to the process as family provision although in Victoria they refer to it as Part IV of the Victorian Legislation. However one prefers to name the process all claims in each are very similar HOWEVER there are differences that need to be known. The main differences relate to the time in which claims are to be made and the persons who are eligible to make a claim.

Family provision claims are made by eligible applicants who in essence say to the court “We know the Will is valid but we received no provision from the estate or not enough provision from the estate under all of the circumstances. So this is not a challenge that the Will is invalid… but rather that the applicant did not receive any or sufficient provision out of the estate.

Family provision claims are all about… firstly, the relationship between the applicant and the deceased and… secondly and most importantly the financial need of the applicant. If you have no demonstrable financial need you have no claim… in any State.

Whilst every State has very similar considerations to each other when determining claims… in NSW the legislation lists relevant factors more clearly than other States. In NSW (and also considered in other States) the following matters are relevant to be be considered by the Court in a family provision claim.

  • (a) The relationship between the applicant and the deceased person, including the nature and duration of the relationship.
  • (b) Any obligations or responsibilities owed by the deceased person to the applicant and to any other relevant person.
  • (c) The extent of the deceased person’s estate.
  • (d) The financial resources and financial needs, both present and future, of the applicant or any other relevant person.
  • (e) The financial circumstances of the applicant’s partner.
  • (f) Any physical, intellectual or mental disability of the applicant.
  • (g) The age of the applicant.
  • (h) Any contribution by the applicant to the acquisition, conservation and improvement of the estate or welfare of the deceased person or the deceased person’s family.
  • (i) Any provision made for the applicant by the deceased person, either during the deceased person’s lifetime.
  • (j) Any evidence of the testamentary intentions of the deceased person.
  • (k) If the applicant was being maintained by the deceased person before the deceased person’s death.
  • (l) Whether any other person is liable to support the applicant.
  • (m) The character and conduct of the applicant before and after the date of the death of the deceased person.
  • (n) The conduct of any other person before and after the date of the death of the deceased person.
  • (o) Any relevant Aboriginal or Torres Strait Islander customary law.

Each Australian State have different rules for family provision claims. Please see hereunder a summary of the rules applicable to each State as far as TIME TO MAKE A CLAIM and ELIGIBILITY is concerned. Please note however that there are many other differences.

Eric Butler and the lawyers at Butler’s Dispute Lawyers specialise in Family Provision Claims, with extensive experience in lodging and representing individuals throughout the duration of the proceedings following a Family Provision Claim. With years of experience in the disputed law field, Eric Butler is well equipped to represent clients in all Family Provision Claims suits to ensure all parties involved get just distribution of the deceased estate.

For the best chance at an advantageous result, a qualified professional is required to represent you during your Family Provision Claim and Eric Butler is extensively trained and experienced in the Family Provision Claims field.

1. What are some examples of disputed wills or disputed probate?

There could be an argument about what the will means. It may be unclear and a judge finally asked to determine the question.

There may be an argument about the way the estate has been distributed by the executor.

The beneficiaries may be alleging the executor is negligent, fraudulent or slow in performing his or her duties.

Probate should usually be applied for within six months of death and the estate distributed within twelve months of death. These time frames are not set in concrete and there may be disputes over these points.

An executor named in a will may not want to apply for probate. There may then be a dispute as to who is entitled to apply for a grant of probate.

Often there are several executors named by a will maker. Sometimes one or more refuse to sign documents to apply for probate designed to delay administration of the estate.

2. The question was asked in court proceedings Hitchcock v Pratt as to whether the testator arguably left potential notional estate in NSW – whether de facto control of a trustee company whose subsidiaries hold real estate in NSW amounts to power to dispose of that real estate within Succession Act 2006 (NSW), s 76(2)(a) – whether a director of a company has the power to dispose of the company’s assets with s 76(2)(a). As part of his Judgment His Honour Brereton J. said the following:

20. Accordingly, there will be jurisdiction in this case only if the deceased, having died domiciled in Victoria, left property in New South Wales. It is uncontroversial that he left no actual estate in New South Wales. However, the presence in New South Wales of property which could be designated as notional estate is sufficient to attract jurisdiction, since once designated it assumes for practical purposes equivalence to actual estate. Accordingly, if it were arguable that there was in New South Wales property capable of being designated as notional estate of the deceased, it would be inappropriate summarily to dismiss the proceedings.

25. The plaintiffs’ case was that it was arguable that the deceased had sufficient de facto control over the registered proprietors of the four properties in question that it could be said that, for the purposes of s 76(2)(a), he had not exercised a power to appoint or dispose of those properties with the result that another person (presumably, the defendant) continued to be entitled to exercise that power. (In the course of argument, reference was also made to s 76(2)(e), but counsel was unable to identify any relevant body, association, scheme, fund or plan of which the deceased was a member, or how because of his membership or participation, his death or the occurrence of any other event, property became held by any and if so what other person.)

29. Accordingly, for the purposes of s 76(2)(a), a director’s power, with other members of the board, to dispose of property of a company is not “a power to appoint, or dispose of, property” within s 76(2)(a), because it is constrained by fiduciary obligations. An omission to exercise such a power in favour of the director or an eligible person could not be disadvantageous to the estate or an eligible person for the purposes of s 80, because the power could not lawfully have been exercised in favour of the estate or eligible person. In my view, a director cannot be said to be “entitled” to exercise a power to dispose of a company’s property to himself or to an eligible person other than for valuable consideration.

3. Can lawyer’s costs be capped in family provision proceedings commenced under either the Family Provision Act or Succession Act?

In Parker v Parker [2006] NSWSC 473, Brereton J said at para [12]:

12. There has been some debate before me about some of the items of work in particular affidavits, and whether it would be reasonable to consider such amounts when calculating the plaintiff’s costs. Given the absence of detail, no useful conclusions can be drawn on the amount that should be deducted for costs which have turned out not to be necessary. This leads me to a further consideration of whether the order should be made under Rule 42.4 of the Uniform Civil Procedure Rules. I referred to cases where the Court had ordered that costs be capped and made comments on the amount of costs.

4. What happens in cases where the costs of the proceedings are more than what the applicant receives by way of provision out of the estate?

In Parker v Parker [2006] NSWSC 473, Brereton J said at para [35]:

35. I raised with counsel the question of costs which in an estate as small as this with as many claims on it as here, always presents a difficulty. In Moore v Moore [2004] NSWSC 587, Young CJ in Eq said that ordinarily some special justification would be needed to warrant an order for more than $35,000 for costs of a successful claimant in a family provisions application. In the context of proceedings under the Property (Relationships) Act 1984 (NSW), in Deves v Porter [2003] NSWSC 878 Campbell J suggested that a useful rule of thumb in such proceedings was that the costs awarded ought not exceed the amount recovered. But in Van Zonneveld v Seaton (No 2) [2005] NSWSC 175 Campbell J recognised that, while Deves v Porter provided a useful rule of thumb, it was one which had to be applied with caution and having regard to the circumstances of the individual case.

5. My sister is one of the executors of my father’s estate (the other executor is my mother who past away before my father). She is also one of the beneficiaries of my father’s estate. She is facing financial difficulties servicing his debt aka he borrowed too much from the banks to purchase commercial real estate. If she files for bankruptcy how does it affect her role as executor? How does it affect her inheritance? I mean can the banks seize her inheritance from my father’s estate?

In Parker v Parker [2006] NSWSC 473, Brereton J said at para [35]:

Her bankruptcy may not have an effect on her duties as executor however any funds due to her as beneficiary will automatically be vested in his trustee in bankruptcy to pay her debts.

6. I would like to know where I stand. I advertised my intention to apply for probate as an executor with my sister, then, 28 days later applied for probate, which was granted. I checked Lawlink’s website which stated it was not necessary to advertise an Intention to Distribute. I then distributed the estate on 10 March 2011 sending my sister her 15% share of the estate as a beneficiary specified in the will. Then on 24 March 2011 I received a letter from her solicitor requesting a full copy of the grant of probate including the inventory of assets and requesting that I do not distribute the estate unless I provide 28 days’ notice to do so, or if already distributed to provide details of the publication of intention to distribute. In actual fact, my sister had already received her share and I have a signed advice receipt card to prove this. She was quite aware that the estate was distributed having received her share. Could you please advise me what I need to do here?

As executor, to be safe from any claim against you, you should not have distributed the estate at least until six months after the death of the deceased. Further, to be safer you should have advertised your intention to distribute and waited 30 days before distributing. If there is a claim against the estate and the persons to whom you distributed will not or cannot repay you the funds you distributed you will be personally liable to pay any claim/s against the estate.

7. I wish to commence a family provision claim. How do I notify the court of my claim?

By filing a summons with the court.

8. What other documents are filed with the summons?

Sections 4 and 5 of the PRACTICE NOTE SC Eq 7 – Family Provision provide:

4. The plaintiff must serve the following documents with the Summons:

  • a) An affidavit adapted from the form in Annexure 1 to this Practice Note
  • b) Notice of eligible persons
  • c) Draft consent orders for the first return date of the Summons that:
    • Set out a timetable for the future conduct of the proceedings including the service of affidavits and the disclosure of any documents
    • Refer the proceedings to mediation at the conclusion of that timetable.

5. If a limitation period is about to expire and proceedings are being commenced to preserve rights, the plaintiff must serve the following documents with the Summons:

  • a) An affidavit setting out the reasons why the service of evidence should be deferred
  • b) Draft consent orders for the first return date that set out a timetable for the future conduct of the proceedings.

9. In a family provision claim, what is the procedure for serving a notice of eligible persons in New South Wales?

The answer is found in the Supreme Court Rules (Amendment No 416) 2009 under the Supreme Court Act 1970 Schedule 1:

4 Notice to eligible persons

  1. (1) The plaintiff applying for a family provision order under Chapter 3 (of the Succession Act 2006 (NSW)) must, unless he or she is the administrator, when serving the application, also serve a notice on the administrator showing who, in his or her opinion, is or may be an eligible person (designating as a person under legal incapacity any eligible person who, in his or her opinion, is or may be a person under legal incapacity).
  2. (2) The administrator must serve a notice in accordance with subclause (3) on the following:
    • (a) the surviving spouse (if any) of the deceased person,
    • (b) every child of the deceased person,/li>
    • (c) every person not mentioned in paragraph (a) or (b) who is entitled to share in the distributable estate of the deceased person,
    • (d) any person mentioned by the plaintiff in his or her notice served under subclause (1) and not mentioned in paragraph (a), (b) or (c),
    • (e) any other person who, in his or her opinion, is or may be an eligible person.
  3. (3) The notice must set out the following: The plaintiff has applied to the Court under the Succession Act 2006 for a family provision order in respect of the estate of (name) deceased who died on (date). If you are entitled to, and wish to apply for, an order for provision for you out of that estate, you must apply within a period prescribed by the Succession Act 2006 or allowed by the Court. If you do not, before the Court deals with the plaintiff’s application, apply for an order for provision for you out of that estate, the Court may deal with the plaintiff’s application without regard to any possible application by you.

10. How much does it cost to file a summons in the Supreme Court of New South Wales for a family provision claim?

From 1 August 2011 the current fee for an originating process is $926.00.

11. Who pays this fee?

Normally the person or persons making a family provision claim upon the estate.

12. Can this fee be waived?

Yes, by filing an Application to postpone, remit or waive payment of a court fee.

13. What matters does the court commonly take into account when considering such an application?

Any orders or recommendations made by the court e.g. orders in relation to vexatious litigants and recommendations to remit fees;

  • any orders or recommendations made by the court e.g. orders in relation to vexatious litigants and recommendations to remit fees;
  • whether paying the fee will cause the applicant undue financial hardship;
  • the reason why the service is required;
  • the need for procedural fairness for litigants in person;
  • whether the person is under 18 years of age, if the fees relate to criminal proceedings;
  • whether the person is in custody;
  • any compassionate grounds; and
  • whether a viable alternative exists for providing the service e.g. the applicant can view the documents or transcripts at the registry.

14. When will the court generally grant an application?

Where:

  • the applicant depends on social security payments and lacks sufficient income and capital to pay the fee, or obtain credit on reasonable terms;
  • the applicant is otherwise indebted to an extent that he/she is incapable of obtaining credit on reasonable terms to pay a fee; and
  • the applicant has been granted legal aid.
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