Family Provision Claims
The Succession Act 2006 (NSW) ("the Act") provides that an eligible person may apply for provision from a deceased person's estate. An eligible person may also apply for further provision from a deceased person'e estate if an original provision is inequitable.
Family Provision claims are made in the Supreme Court of New South Wales and Justice Hallen is currently the the Judge of the Family Provision List and in recent years there has been a streamlining of the process, with a greater emphasis on mediation, to reduce time and costs.
Limitation: Claims for Family Provision must be made within 12 months of the date of the deceased's death. However, if the limitation deadline is approaching a plaintiff may commence proceedings by filing the Summons without an accompanying affidavit but must file the affidavit at least before the first Directions Hearing, which is usually within 28 days of the filing of the Summons.
The List is generally dealt with on Fridays.
For legal practitioners Family Provision Practice Note Eq 7, which became effective on March 1st 2013, sets out the requirements for the procedures to be followed once a Summons has been filed and served.
There is a standardised form of affidavit for the Plaintiff in Annexure One of the Practice Note. This confines evidence to those factors contained in section 60 of the Act. Previously there was a requirement that a Plaintiff annex their financial documents such as tax returns, bank statements and details of superannuation interests however, whilst this requirement is no longer mandatory an Executor/Defendant may request inspection of these categories of documents.
The Executor/Defendant of the estate must file an affidavit which lists the assets and liabilities of the estate, the notional estate and eligible persons. It must serve a copy of this affidavit on all eligible persons and file an Affidavit of Service with the Court. Prior to mediation the Executor/Defendant is generally limited to one affidavit to respond to the Plaintiff's claim and one affidavit listing the other beneficiaries' financial circumstances. If the other beneficiaries' financial circumstances become an issue then the beneficiaries will be required to produce a verified schedule detailing those financial circumstances or the Plaintiff may request that they inspect documents relating to the benefiaries' financial circumstances.
In addition to the above affidavits, the Plaintiff and the Executor/Defendant must also file an affidavit estimating their respective costs, on a party/party basis up to the mediation.
Generally, the matter will be referred to mediation at the first Mention date. If the matter does not settle at or before mediation takes place then the parties may apply to the Court to file further affidavits.
There are copies of Standard Directions prepared for use at the Directions Hearings and the Court encourages practitioners to have communicated with a view to having agreement on the Directions to be made. Whilst the Standard Directions can be varied, practitioners should be prepared to provide an explanation to the Court as to why this is necessary.
A minimum outcome from the first Directions Hearing is that a timetable should be agreed upon for filing any affidavit still required to be filed, a mediation date and a return date. This date is typically approximately 2 weeks after the mediation. If there are more than one matter concerning the same estate then the parties should seek Orders that they be heard together and that the evidence in one matter may be evidence in the others. This reduces the potential for costs.