ByLawyers News and Updates

New guide – Family Provision Claims – SA

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South Australian subscribers are invited to explore By Lawyers new publication, Family Provision Claims (SA).

This practical guide contains matter plans, commentaries and precedents for Acting for the Plaintiff and Acting for the Defendant.

Precedents in Acting for the Plaintiff guide include:

  • Retainer instructions;
  • Letter to client with initial advice;
  • Initial letter to estate or their solicitor;
  • Deed of settlement;
  • Deeds of family arrangement;
  • Brief to counsel;
  • Initiating application;
  • Affidavit in support;
  • Outline of submissions;
  • Example court book index;
  • Letter to plaintiff finalising the matter.

Precedents in Acting for the Defendant guide include:

  • Retainer instructions;
  • Letter to estate with initial advice;
  • Letter to claimant’s solicitor in response to their initial letter;
  • Letter reporting to estate on settlement;
  • Rule 315 affidavit of executor or administrator;
  • Defendant’s position paper for mediation;
  • Example formal offer;
  • Letter to defendant finalising the matter.

The commentaries in both Acting for the Plaintiff and Acting for the Defendant include:

  • Overview and time limits;
  • Managing the lawyer-client relationship and client identification;
  • Time and costs estimates;
  • Taking instructions and advising on the claim;
  • Assessing the merits of a claim;
  • When the court can make an order;
  • Assessing and calculating adequate provision;
  • Considering competing interests;
  • 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.

The By Lawyers South Australian Family Provision Claims publication is a comprehensive and practical resource for practitioners who are advising and representing either claimants or estates.

Family Provision – Widows claims – NSW

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New commentary, including an entry specific to Widows claims, has been added to the Family Provision section of the By Lawyers Reference Guide 101 Succession Answers.

Case note

These enhancements reflect the recent Court of Appeal decision in Steinmetz v Shannon 2019 NSWCA 114. In that case, the Court of Appeal overturned the decision of a single judge where the court had refused to make further provision for the widow of a testator. The deceased left the bulk of his $6,650,000 estate to the adult children of his first marriage. The will gave the widow only an annuity of $52,000. The couple had been together for 28 years.

The Court of Appeal found that leaving a 65-year-old widow, who is capable of managing her own affairs, reliant for the rest of her life on quarterly payments by the children of her deceased husband’s first marriage, with one of whom there had been historical tensions, rather than placing her in control of her own resources, was not an appropriate form of provision. Instead, the Court of Appeal ordered that the widow receive a legacy of $1,750,000, in addition to the annuity.

The judgment includes a detailed analysis of the leading cases on widows claims. Additionally, it considers how the court should balance the competing imperatives of the deceased’s testamentary freedom and the legislative requirements for provision to be made for eligible persons. In considering the applicant’s need for maintenance, education and advancement, the Court of Appeal also acknowledged the relevance of the non-financial needs of the applicant, such as her desire to relocate to a bigger town for better access to medical care.

Publication update

The new section in 101 Succession Answers discusses this Court of Appeal decision and widows claims generally. There have also been related and incidental enhancements made to other sections of the publication. The interactive alphabetical contents list has been updated accordingly to maintain the easy access to content which is the hallmark of all By Lawyers reference guides.

Reference materials

101 Succession Answers covers Powers of Attorney, Appointments of Enduring Guardian, Wills, Estates and Family Provision. This valuable By Lawyers reference guide is located in the Reference Materials folder on the matter plan in each of those publications.

Attempts to expressly disinherit eligible persons – 101 Succession Answers NSW

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The recent case of Re Estate McNamara [2018] NSWSC 1661 reinforces the position that attempts by testators to expressly disinherit eligible persons in wills do not prevent the eligible person from either bringing a Family Provision claim, or from succeeding in an application for provision, or additional provision, from the testator’s estate. At 55 Lindsay J comments:

Upon an examination of the facts of the case from that perspective, and viewing the totality of the relationships between the deceased and her sons and their respective families, the deceased’s testamentary disclaimer of an intention to benefit the plaintiff is not an absolute bar to the making of a family provision order in his favour. 

The deceased provided an extensive and clear direction in her will that her adult son not receive provision out of her estate. Notwithstanding this express intention, the adult child was awarded $75,000 out of the estate, although that sum was severely limited given the circumstances – see at 66:

Had the plaintiff had a consistent, supportive and loving relationship with his parents, (more particularly, his mother) throughout his life he would have a greater claim to his mother’s bounty than he has now.

The court’s discussion in McNamara should be considered by practitioners when drafting wills for clients who are seeking to disinherit eligible persons. Clients should be advised that any such attempt may not be effective and by providing instructions to draft such a will they may only serve to burden their estate with the costs of Family Provision litigation.

The By Lawyers 101 Succession Answers (NSW) reference guide has been updated to include this case.

NSW – Family provision – Interim orders

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Prompted by a recent Supreme Court case, we have added a new section called Interim provision to our 101 Succession Answers Reference Guide, which is included in all of the By Lawyers succession related publications for NSW –  Estates; Wills, Powers of Attorney, Appointment of Enduring Guardian & Advance Care Planning and Family Provision Claims.

Pursuant to s 62 Succession Act 2006 it is possible for a plaintiff who seeks provision from an estate as an eligible person under Chapter 3 to make an application for interim provision,
before – in fact while awaiting – the final hearing. Success in such applications is however very rare.

Before it can make an order for interim provision, the court must be ‘of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order’. The cases suggest this is a very high bar indeed, even for a plaintiff with dire financial need.

We invite you to explore the Family Provision section of 101 Succession Answers to find out more on this interesting topic.

New publication – NSW 101 Succession Answers, including Appointments of Enduring Guardian and Powers of Attorney

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We are delighted to release the latest in our 101 Reference Series – a comprehensive reference guide for NSW dealing with:

  • appointments of enduring guardian;
  • powers of attorney;
  • wills;
  • estates  – probate and administration;
  • family provision.

101 Succession Answers is now included for new and existing subscribers to these NSW publications:

  • Wills, Powers of Attorney, Appointment of Enduring Guardian & Advance Care Planning;
  • Estates;
  • Family Provision Claims.

This is a must-have, easy-reference resource for all firms, providing detailed information in a quickly accessible and searchable format. Tricky questions can be answered quickly using the guide’s alphabetical headings and plain English format. The content can be cut and pasted into letters or emails to clients addressing their specific queries, either in response to an initial enquiry or during the course of the matter.

  • Who is not eligible to be appointed as an enduring guardian?
  • When is an attorney to consider that their principal is incommunicate?
  • Can a solicitor take a benefit under a will that the solicitor has witnessed?
  • Under what circumstances might a grant of probate be revoked?
  • Has the High Court considered the position of an adult child who brings a family provision claim on the basis that their estranged parent previously promised them an inheritance?

If you would like everyone in your firm to be able to readily answer questions such as these, then you will definitely benefit from 101 Succession Answers!

QLD – Stepchild includes child of party to de facto relationship

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The definition of a stepchild has been extended to include the child of a party to a de facto relationship, so a stepchild of the de facto testator is capable of bringing a claim against the testator’s estate as the deceased step-parent: s 40A Succession Act 1981.

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