family provision By Lawyers

New Family provision precedents – NSW

14 September 2020 by By Lawyers

Following an author review, a raft of helpful new Family provision precedents have been added to the By Lawyers Family Provision Claims (NSW) publication.

There is new content on the matter plans in both Acting for the Estate and Acting for the Plaintiff.

The new content includes:

Acting for the Estate – new family provision precedents

Letter to eligible person
Letter to beneficiary affected by settlement of claim
Letter to client enclosing Practice Note SC EQ 7
Letter to client after first directions hearing
Letter to client enclosing affidavits for signing
Letter to client enclosing draft affidavits
Letter to witness enclosing affidavit for signing

Acting for the Plaintiff – new family provision precedents

Letter to potential claimant
Letter to client enclosing Practice Note SC EQ 7
Letter to client enclosing settlement deed
Authority to settle and receive
Direction to pay and authority to receive
Letter to client enclosing settlement deed
Letter to client after filing claim
Letter to defendant serving summons and other documents
Letter to client enclosing draft affidavit
Letter to client enclosing affidavit for signing
Letter to client after first directions hearing
Letter to client enclosing estate affidavits
Letter to witness enclosing affidavit for signing
Letter to client updating costs disclosure
Letter to client finalising the matter – Payment
Letter to client finalising the matter – No payment

This review and the addition of these new family provision precedents is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Family provision claims – NSW

12 May 2020 by By Lawyers

A full review of the By Lawyers Family provision claims – Acting for the estate guide has been conducted. This follows upon the recent review of Family provision claims – Acting for the plaintiff.

The review of this popular practical guide ensures that all content is in line with current law and practice.

Updates and enhancements include:

a re-organised and streamlined commentary that better caters for current practice;
additional assistance to help the practitioner get the matter underway;
enhanced commentary on preparing for and attending at mediation;
an updated matter plan that includes links to important sections of the commentary; and
significantly enhanced precedents:
- Letter to plaintiff’s solicitor in response to their initial letter;
- Brief to counsel – Defendant;
- Defendant’s notice to eligible persons; and
- Outline of submissions – Defendant.

This review of our NSW Family provision claims guides are part of By Lawyers ongoing commitment to continual improvement and enhancement of our content.

Additional information on Family provision claims can be found in the By Lawyers reference manual 101 Succession Answers (NSW). This includes the leading and latest cases on various important aspects of family provision claims. 101 Succession Answers is available in the Reference Materials folder in all related guides for NSW – Family provision, Wills, Estates, Powers of attorney and Appointments of enduring guardian.

Family provision claims – Acting for the Plaintiff (NSW)

20 March 2020 by By Lawyers

A full review of the By Lawyers Family provision claims – Acting for the plaintiff guide has been conducted.

The review ensures that all content is in line with current law and practice.

Improved content and new precedents

Updates and enhancements include:

a re-organised and streamlined commentary that better caters for current practice;
additional assistance to help the practitioner get the matter underway;
enhanced commentary on preparing for and attending at mediation;
an updated matter plan that includes links to important sections of the commentary; and
six new precedents – additional initial letters which cater for different circumstances regarding the estate.

101 Succession Answers (NSW)

Subscribers are reminded that the By Lawyers reference manual 101 Succession Answers (NSW) also has a large and helpful section on Family provision claims. This includes many links to relevant sections of the legislation, plus links to leading and recent cases on various aspects of Family provision claims.

101 Succession Answers (NSW) is found at the top of the Family provision claims – Acting for the plaintiff matter plan and also in the Reference materials folder.

Keep up to date with By Lawyers

These updates to our Family provision claims – Acting for the plaintiff guide, and the regular updates to 101 Succession Answers (NSW) with the latest cases on Family provision claims, are part of By Lawyers commitment to the continual enhancement of our publications. By Lawyers subscribers can be confident that their guides and precedents are always kept up to date so they can enjoy practice more.

Family Provision – 101 Succession Answers (NSW)

24 February 2020 by By Lawyers

Two new cases on Family Provision claims have been added to the By Lawyers Reference manual 101 Succession Answers (NSW).

Affidavits and Disclosure

In Megerditchian v Khatchadourian [2019] NSWSC 1870 the court considered a number of important procedural issues, including the requirement that the plaintiff file an affidavit at the time of filing their summons and the issues relating to the form and evidentiary status of that affidavit. At [159] the court stated:

… the purpose of the affidavit prescribed by the Practice Note is to identify, in broad terms, the plaintiff’s evidence concerning the factors enumerated in s 60(2) which may bear on the application. It will not necessarily be exhaustive, or all in admissible form, and it may be supplemented by further evidence as the case moves towards hearing.

The court also considered the plaintiff’s duty of disclosure. At [145] the court noted that:

It is well established that, in some circumstances, where a plaintiff in a family provision application fails to make full and proper disclosure of his or her financial position, the Court will refuse the application.

This case has been added to the Affidavits and Disclosure sections under Family Provision claims in 101 Succession Answers (NSW).

Disabled adult child claimant

In Cowap v Cowap [2020] NSWCA 19 the Court of Appeal considered the competing claims on an estate of a disabled adult son, the applicant/respondent, and an elderly widow, the respondent/appellant. The son was in fact a child of the widow’s previous marriage but had been adopted by the deceased.

The court at first instance granted the son provision of $600,000. This meant the widow had to sell the former matrimonial home where she had long resided with the deceased and to which she had significant emotional attachment. The son had ‘severe and permanent disability, including cognitive impairment’ because of which there was strong evidence in support of his need for provision. The widow, to whom the entire estate had been left, also had a strong claim on the estate as it was a long marriage.

The sale of the property allowed the widow to purchase another smaller property and maintain her existing income. The judge at first instance, in granting provision to the son, decided that was an appropriate outcome given the 91-year-old widow would inevitably leave the property in due course in any event.

The Court of Appeal held that the first instance judge had made no error and dismissed the appeal.

Of further interest in this case is that the Court of Appeal refused to admit on the appeal any new evidence of valuation of the property. [35].

This case has been added to the Adult Children section under Family Provision claims in 101 Succession Answers (NSW).

Family Provision Claims review – VIC

21 September 2018 by By Lawyers

Our Victorian Family Provision Claims publication has just had a comprehensive review. We invite you to peruse our updated matter plans for Acting for the Plaintiff and Acting for the Estate in Family Provision claims – or ‘TFM’ claims as they are still generally known.

While many updates to By Lawyers publications arise from changes to legislation, developments in case law, or when subscribers ask us for new content, at By Lawyers we also routinely enhance and develop our publications as part of our commitment to continual improvement.

New/reviewed precedents in Acting for the Plaintiff include:

Letter to client with initial advice;
Initial letter to estate solicitor;
Affidavit of the plaintiff (Estate greater than $500K);
Position statement of the plaintiff (Estate less than $500K);
Affidavit of the plaintiff’s solicitor re costs;
Approval of compromise order (new TFM List precedent);
Letter to estate solicitor before first directions hearing;
Minutes of order for TFM first directions hearing;
Example content – Directions;
Letter to potential additional defendants;
Letter to real estate agent seeking market appraisal of real property;
Example content – Plaintiff’s position statement for hearing;
Letter to plaintiff finalising the matter.

New/reviewed precedents for Acting for the Estate include:

Letter to estate with initial advice;
Letter reporting to estate on settlement;
Approval of compromise order;
Affidavit of executor OR administrator of the estate;
Minutes of order for TFM first directions hearing;
Example content – Directions;
Letter to potential additional defendants;
Letter to real estate agent seeking market appraisal for comparison to plaintiff’s market appraisal;
Letter to real estate agent seeking market appraisal of estate’s property;
Letter to estate solicitor before first directions hearing;
Example content – Defendant’s position statement for hearing;
Application for leave to appeal;
Letter to plaintiff finalising the matter.

Our matter plans are structured so that everything required is at hand. For instance, certifications required on filing your documents in court are included – Overarching Obligations Certification and Proper Basis Certification.

The commentary in both Acting for the Plaintiff and Acting for the Estate has been enhanced, to include:

managing the lawyer-client relationship and client identification;
time and cost estimates;
taking instructions and advising on the claim;
assessing the merits of a claim;
when the court can make an order;
factors the court must consider
factors the court may consider;
when to negotiate and tips for effective negotiation;
mediation;
commencing the claim;
the first directions hearing date;
costs and the supervisory approach taken by the court to costs;
the procedure following an order.

Our Victorian Family Provision Claims Guide is a comprehensive and practical resource for small law firms.