Deed of Family Arrangement for an Australian Estate

Australian Capital Territory
New South Wales
Northern Territory
South Australia
Western Australia

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Where there is an Estate there are Relatives, Dependents, Claimants & Creditors!

The following observation has been extracted from page 38 of the book "Old Law, New Law: A Second Australian Legal Miscellany" by Keith Mason.

Gallop J. once observed that [1]:

These appeals demonstrate the truth of the old aphorism that "where there is a Will, there's a relative".

We suggest the following extensions to this old aphorism:  

"Were there is an Estate, there are relatives, dependents, claimants & creditors (as well as lawyers, state revenue, and the tax office)!"

A compromise is in the best interests of all would-be beneficiaries

Continuing on from above on page 38:

Would-be beneficiaries are often disappointed or deluded in their expectations.
Burt CJ. [2] urged the parties to a probate suit to reach a compromise "otherwise the lawyers would make themselves heirs-by-law of the whole of the property".

Our Deed of Family Arrangement (a.k.a Family Deed of Arrangement) is a top-tier-quality legal document designed to be used for:

✅ An agreement between all interested parties (up to a maximum of 100 assuming they are acting with valid legal capacity) whether before or after the Estate Owner passes away) and if after passing, whether pursuant to a Will or Intestacy; and/or

✅ To effect the settlement and release of an Australian Will Dispute / Family Provision Claim between the estate and up to 100 claimant/s before proceedings have been commenced in the relevant Supreme Court.

The Family Arrangements provided for in the Deed can include any of the following:

⚖️ Lump Sum Payment (which may be set-off by various amounts);

⚖️ Periodic amounts at specified intervals;

⚖️ The transfer of an absolute or a limited interest (such as a % share, or Life Estate) in one or more existing or future properties;

⚖️ Hold the agreed distribution from the Estate in a new Trust;

⚖️ Transfer the agreed distribution to an existing or Testamentary Trust created by the Will (if any);

⚖️ Disclaimer or Renunciation of any claim to a benefit under a Will or Intestacy (including Partial Intestacy); and/or

⚖️ Variation of the terms of the Will (if any) / Statutory Intestacy Rules.

If Legal Proceedings have been commenced:

Our Embedded Lawyer-Logic™ automatically converts the document generated to DRAFT Settlement Consent Orders.

Family Provision Orders made by the Court take effect "as if" made by Will or Codicil to a Will

All Australian jurisdictions have legislation that enables Family Provision Orders made by the Court to take effect "as if" they are a Codicil to the Will, or "as if" they are contained within a Will if the deceased died intestate.

This legislative effect granted to Family Provision Orders made by the Court has important tax and stamp duty impacts (financial benefits) that depend upon the circumstances of the estate.

The financial benefits to the parties enabled by Family Provision Orders may be significant, and need to be viewed in contrast with a Deed of Family Arrangement +/or Deed of Settlement and Release entered into prior to the commencement of legal proceedings (which most likely would not qualify for any tax and stamp duty exemptions).

Each State or Territory sets out the Statutory Effect via their own legislation as follows:

VIC s.96 of the Administration and Probate Act (Vic) 1958 the Court may order that the orders have this effect.

NSW s.72 of the Succession Act (NSW) unless the Court orders otherwise the orders have this effect.

In all the other States and Territories the effect of the Court Orders are to automatically grant tax and stamp duty exemptions...

Qld  s.43 of the Succession Act (Qld)

ACT s.16 of the Family Provision Act (ACT) 1969 ...

NT s.16 of the Family Provision Act (NT) 1970 ...

WA s.10 of the Family Provision Act (WA) 1972 ...

SA  s.10 of the Inheritance (Family Provision) Act (SA) 1972 ...  

Tas. s.10B of the Testator's Family Maintenance Act (Tas.) 1912.

Document Overview:

1️⃣ Functions proactively as an Estate Planning tool, or reactively to document agreed arrangements / settlement terms regardless of whether or not court proceedings have commenced;

2️⃣ Comprehensively drafted to specifically deal with both the agreement of all interested parties in a present or potential future deceased estate, and/or the release of an Australian Will Dispute / Family Provision Claim;

3️⃣ Consent Orders or a Notice of Discontinuance can be attached;

4️⃣ Includes confidentiality and non-disparagement provisions;

5️⃣ Can optionally carve out claims where new information is received after the release that indicates fraud or dishonesty;

⚖️ To avoid any potential for subsequent disputes relating to misrepresentations of non-disclosure parties need to ensure they comply at all times with their legal obligation to provide full and updated disclosure of all relevant evidence;

6️⃣ Certificates of Independent Legal Advice for each party to the Deed; and

7️⃣ Acknowledgements by each party to the Deed that before signing they received Independent Legal Advice.

Note: There may be significant stamp duty^ and/or capital gains tax implications.

We recommend you contact our legal team to obtain professional legal advice on this issue.

Important: A Family Provision Claim may still be filed with the Court

The High Court of Australia has held that it is contrary to public policy for a person to contract out of or release their right to an inheritance [3].

Therefore, even after a Deed of Family Arrangement has been validly executed and delivered it cannot be used to bar (or in plain English: avoid) an Australian Family Provision Claim for further and better ("adequate") provision.

Daebritz v Gandy [4] is an example of a case where court proceedings were allowed to proceed after a Deed of Family Arrangement had been validly executed.

An exception may apply to make the Deed of Family Arrangement binding if the relevant family provision legislation provides otherwise [5] or in NSW, the release included within the terms of the Deed of Family Arrangement has been been approved by the Court (refer to the discussion below re: NSW s. 95 application).

Good Deal v. Bad Deal

As a practical matter, if the Deed of Family Arrangement is actually a "Good Deal" which operates to remedy inadequate provision in the Will it is difficult to see what benefit seeking to change the deal by making a subsequent Family Provision Claim with the Court.

On the contrary, making a Family Provision Claim when it is not nececessary (as the claimant already has a "Good Deal") would increase the risk of adverse costs orders due to the need to reimburse the estate's legal costs involved in defending an unnecessary claim.

The public policy appears to operate to prevent a claimant from signing a "Bad Deal" and then having no recourse to the Courts to rectify the matter and obtain "adequate" provision.

Making the Deed Binding in NSW?

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.

s95 Application: Can be used as a proactive measure to minimise the possibility of litigation against the future estate

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 [6].

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.


^ Some stamp duty concessions may apply, for example in NSW, stamp duty from the transfer of assets using a Deed of Family Arrangement will only be paid on the value of assets exceeding what the beneficiary would have received anyway based on the Will or Intestacy Rules. (s63 of the Duties Act 1997 (NSW).

[1] Re Herbert (1990) 101 FLR 279 at 281.

[2] JM Bennett, Sir Archibald Burt: First Chief Justice of Western Australia 1861-1879, Federation press, 2002, p. 56.

[3] Lieberman v Morris [1944] HCA 13

[4] [2001] WASC 45

[5] Historically, in NSW the old Testator's Family Maintenance and Guardianship of Infants Act NSW 1916-1938 ("TFM Act") allowed in section 5 (now repealed) a contracting out of the Act in the limited circumstances set out in that section.

[6] 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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What clients say

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James has been great to work with. I called him on a Monday and by Tuesday he had a formal [19-Page] Concerns Notice sent to a person defaming me and my business. He stayed in touch throughout the day, kept me updated regularly and was diligent to ensure we were exercising all of my rights under the law. Thanks, James!

Crystal Polson | Defamation & Injurious Falsehood [Vic]




May 2023

James was great, going above and beyond to help me with my enquiry. He provided detailed explanations with references to the appropriate regulations and case examples.

Siyuan W. | Landlord (NSW)


May 2023

We needed a really good lawyer and after doing our research we decided to contact Blue Ocean Law Group. James runs a very efficient service and has extensive knowledge of Defamation Law. Nothing was a problem. James would follow up with me regarding issues that had arisen. He dealt with each issue in a professional and ethical manner. James would explain every detail on the phone and the process could not have been easier!

Lake Macquarie Coastal Glass | Defamation Concerns Notice (NSW) [1 of 2]


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Mar 2023

Blue Ocean Law Group's website has plenty of information in easy, layman's language that explains how Defamation Law works in Australia and from there, it was really easy to book an appointment online. James is a thoroughly professional Lawyer and it was a pleasure dealing with him. Keep up the good work, James! Cheers! ⭐️⭐️⭐️⭐️⭐️

Lake Macquarie Coastal Glass | Defamation Concerns Notice (NSW) [2 of 2]


Mar 2023

(Translated by Google) Lawyer James Ford was the best. He assisted me all the way through a dispute with a tenant who tried his best to extort money from the landlord due to a conflict with another tenant. James is reliable in his profession amongst lawyers in this field ... James patiently guided me, a landlord whose English is my second language, throughout the whole process ... It was because of his command that my case was turned from a disadvantage to an advantage. His charges are also very reasonable. So if you are a landlord I would highly recommend 'James Ford' to you.

Carol Ma | NCAT Landlord Tenant Dispute (NSW)


Feb 2023

Very helpful and thorough advice. James was able to explain the options available to us in detail, and the implications involved. He was knowledgeable and very professional. Would definitely go to him again.

Haim Zagroon


Jan 2023

James was very patient and understood my legal issues. He gave me the most detailed answer he could and extended the time as he wanted to give me the answers I needed. He was very knowledgeable in his area and was able to offer me insightful advice. Would highly recommend.



Dec 2022

Our case was unique. My client was based in Thailand and we needed a lawyer in Australia. After searching several firms in NSW we found Blue Ocean Law Group. James was very helpful. He explained the matter in detail via emails and on several occasions over the phone to us in Thailand. The resources on the firm's website were also very helpful in providing additional information for us. I would highly recommend James and will use him again if we need a lawyer in Australia.

Samram Laepong


Dec 2022

Great Service and very professional!

Zhang Rose | NSW Real Estate Agent + Landlord


Nov 2022

General FAQ

What are pleadings?

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!

What are Pleadings?

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.

Why are Pleadings so important in Civil Litigation?

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.


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.

How do I negotiate my civil dispute whilst protecting myself?

You have the right to remain silent … in your civil legal dispute

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.

We recommend you don't say or write anything until you have spoken to your lawyer

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.

Proceeding without your lawyer

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.


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.

Can I insure against loss at trial in Australia?


Australian claimants looking to protect themselves against a loss at trial can now insure themselves locally instead of sourcing cover from overseas

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.

To find out more about ATE litigation insurance:

➲ Contact Us.


This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.