Family Provision Claims

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.

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.

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.

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.

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.

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.

By filing a summons with the court.

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.

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.

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

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

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

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.

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.