ByLawyers News and Updates

Family provision cases – VIC

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Changes have been made to the way family provision cases are managed in the Supreme Court of Victoria.

The latest version of Practice Note SC CL 7 (Second revision) provides guidance on how proceedings in the Testators Family Maintenance List are managed by the court.

Family provision claims made under Part IV of the Administration and Probate Act 1958 are commenced in the Testator’s Family Maintenance List, in accordance with Order 16 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018.

The main procedural changes for management of family provision cases from the previous version of the practice note are:

  • an increase in the threshold above which a provision statement, rather than an affidavit, is required to be filed – this will now apply to estates with a valuation of less than $1,00,000 rather than $750,000;
  • introduction of a requirement for the parties to attend at the first directions hearing unless they are otherwise advised by the court;
  • in some circumstances, where position statements or affidavits result in the judge hearing oral evidence, the costs of preparing and responding to position statements and affidavits may be ordered separately to the costs of the overall proceedings;
  • an increase in the threshold below which the court may refer the proceeding to mediation before a judge or a Specified Court Officer, from estates under $750,000 to estates under $1,000,000;
  • communication about proceedings in the list can now be made to the Testator’s Family Maintenance Coordinator via email: tfm@supcourt.vic.gov.au.

Links in the commentary in the By Lawyers Family Provision Claims (VIC) publication have been updated to the new version of the practice note.

Homemade wills – NSW

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The Supreme Court of NSW recently considered homemade wills in Jones v Robinson & Ors [2019] NSWSC 932.

Particularly in question was the appropriate interpretation where ambiguity existed in the document.

The Court affirmed the ‘well accepted’ principles from Justice Isaacs in Fell v Fell (1922) 31 CLR 268 on the construction of wills and further noted that:

‘With any homemade will the language used will often be informal, but the plain meaning of words should not be ignored. Moreover the instrument has to be viewed as a whole. Inaccuracies or inconsistencies should be looked at so as to best preserve a testator’s intention and that approach should be a predominant consideration in the construction of the instrument’.

In determining that the testator’s failure to deal with the residuary of her estate did not create an intestacy, the Court stated that ‘The mere fact that the creator of a homemade will did not contemplate every legal contingency or the potential of residue does no more than highlight that the maker is not a lawyer’.

Of course the mere fact that ambiguity existed and an expensive court case was required to resolve it, tends to support the value of wills drafted by lawyers over homemade wills. The By Lawyers Wills publication contains carefully drafted wills precedents, a library of additional clauses and practical commentary written by experienced lawyers, to assist practitioners who are preparing wills for their clients. The By Lawyers Wills publication also includes the By Lawyers Reference Guide 101 Succession Answers – to which Jones v Robinson has now been added.

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