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James Ford has received 12 LawTap Verified Reviews with an average 4.96 rating to date. Most recent verified review from a client remarked "Really appreciate having your advice and guidance throughout this. Particularly being able to turn around the agreement in such a short time over the past couple of days. Thank you for your timely responses and being available to rush through everything at the end."
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An application can be made under section 95 of the Succession Act 2006 (NSW) to obtain the Court's approval of the release of the right to make a Family Provision Claim made within the terms of the Deed of Family Arrangement.
If Court approval for the release is granted, then the Deed of Family Arrangement effectively becomes binding.
Unless the Court finds under section 96 of the Succession Act 2006 (NSW) grounds to revoke the approval where there are circumstances of fraud or undue influence in the obtaining of the release or in the obtaining of the approval from the Court, or alternatively in a rare scenario where all interested parties consent.
Both the Deed of Family Arrangement and this application to the Court can be made during the lifetime of the testator as a proactive measure to minimise the possibility of a Family Provision Claim being made against the future estate [1].
It is important to note that taking practive steps whilst the testator is alive to avoid litigation is a worthy goal, there is no guarantee that:
1️⃣ Potential future litigators will agree to the proposed terms of any Deed of Family Arrangement; or
2️⃣ The Court will agree; or
3️⃣ The circumstances of either the estate or the potential future litigators will not materially change between the time of entering the Deed of Family Arrangement and the time of the eventual distribution of the estate.
Under section 95(4) of the Succession Act 2006 (NSW) In determining an application for approval of a release, the Court is to take into account all the circumstances of the case, including whether:
(a) it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release, and
(b) it is or was, at that time, prudent for the releasing party to make the release, and
(c) the provisions of any agreement to make the release are or were, at that time, fair and reasonable, and
(d) the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice.
This document must be completed, in full, and filed with all original affidavits, at the same time as the application is made to have the matter placed in the Friday List of the Family Provision List Judge (for Inter Vivos matters) or at the same time as the matter is listed (for other matters) for approval of a release.
Please ensure that all original affidavits to be relied upon, and/or to which reference is made in this document, are delivered to the Associate of the Family Provision List Judge no later than 3 working days prior to the Friday on which the matter is listed for the approval of a release.
Footnotes
[1] Mikhaiel v Breene [2022] NSWSC 102 involved a s. 95 application made whilst the testator was alive in order to proactively prevent a Family Provision Claim against the estate.
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The book “Pleadings without Tears: A Guide to Legal Drafting Under the Civil Procedure Rules” by William Rose [revised & updated by Roger Eastman] we have in our law firm library in its 9th edition when it was published in 2017.
More editions of this highly valued & trusted guide will no doubt ensue.
The book was originally written back in 1990 specifically to address the problem of tears being shed over mistakes being made in Pleadings.
Trust me when I say that despite all the warnings, mistakes in Pleadings continue to this day.
There are good reasons why you don't want to be the party left crying over what could have been!
Whether you are a self-represented litigant in a Tribunal or represent by a Solicitor or a Barrister in a Court or Tribunal the "Pleadings" will be the sum total of all of the documents containing the application or claim, the defence and counterclaim, the reply or answer, and any requests for and responses to further and better particulars.
In the case of an appeal, think of the pleadings as your stated grounds of appeal within your Notice of Appeal, etc. if you get these wrong then your appeal is likely to be dismissed or struck out before you have had the chance to actually submit the details of your appeal to the appeal court.
When you hear the member/judge say the words "the problem is in the Pleadings" or words to that effect you might need to have your tissues on hand.
A great analogy is baking a cake and discovering too late that you left out a key ingredient.
There is no guarantee you will be able to amend the Pleadings to fix the problem at the last minute.
You are generally prevented from making the same claim more than once.
Your missed claim may now be subject to the statute of limitations preventing it from being commenced as it is out of time.
An error in the Pleadings can be irreversibly fatal to the outcome of the civil litigation, or substantially impact on the result or the award of costs once the legal proceedings have completed.
A failure to state valid grounds grounds of appeal within a Notice of Appeal may cause your appeal to be dismissed or stuck out, with the potential for cost orders to be made against you for the other parties legal costs (if any) incurred in responding to your incompetent or deficient Notice of Appeal.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
By the time you approach a lawyer to assist with your civil legal dispute you may have already discussed the matter in detail or sent text messages/emails to the other party, their agent, insurance company or lawyers.
Whilst you might think you are progressing the matter:
➲ This is generally a mistake!
Most people [unless they are experienced in litigation or legal dispute resolution] will unknowingly proceed to make these communications with the other side on an "open” basis.
This means that everything that is said or written might be capable of being used by the other parties in any subsequent legal proceedings.
It is generally known that in any criminal matter, you have the “right to remain silent …” as this is well-covered territory on TV/Movie Legal Dramas and in the media.
When it comes to civil disputes we recommend you adopt the same position.
Our advice may be spot on when it comes to large $$ civil disputes.
When the matter is only a minor one, you may not want to go to the time and/or expense of engaging legal advice specific to your situation.
Q: How then can you proceed?
A: Very carefully, and with the assistance of some very specific legal phraseology which you may or may not have seen before.
Please refer to our blog article “How to cast a magic legal spell? The protection afforded by Without Prejudice Settlement Negotiations." for more information.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
In late 2016, Aon announced the first Australian “After the Event” (ATE) policy for claimants looking to protect themselves against a loss at trial through underwriter Ironshore Australia Pty Ltd.
ATE insurance protects claimants, whether a client or a law firm, by partially deferring payment of the premium, and payment is contingent on the success of the claim.
Eden Fletcher, National Financial Lines Placement Manager, Aon Risk Solutions Australia said this was a significant step for the Australian legal system.
“ATE insurance has been established in the UK for some time and Australian clients have been able to access the cover by going abroad. However, the overseas policies are not made with the Australian market and legislative system in mind. By being able to now access the product here, it will give clients comfort the product is fit for purpose, and is commissioned by local lawyers,” he said.
“Australia has become the most likely jurisdiction outside of the USA in which a corporation will face significant class action litigation. The risks and costs of fighting these cases are high, most are settled before they reach the courts. With a local solution now available, this provides solicitors with an opportunity to take on more cases as their client’s representative, given the client will have the protection of this insurance,” Mr Fletcher said.
The intention of this policy is not to encourage litigation, since premiums provide an incentive to settle early rather than progress deeper into trial, with the rate varying according to the stage at which the litigation is settled.
“We believe ATE insurance will be eagerly explored by law firms acting for the claimant, as it will make a higher percentage of potential class actions even more viable than present, subject to the merits of the case. When there is ATE insurance behind the case, it validates the case has a reasonable chance of success given Ironshore’s due diligence and underwriting methodology,” Mr Fletcher said.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
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