DRAFT Affidavit of Plaintiff ➲ NSW Family Provision Claim

New South Wales

Create this legal Document

Contact us to create this legal document.

Self-Service 🏗

Most Popular

Self Service

Create the document instantly yourself by entering the key details.

A$

220

Self-Service 🏗

Most Popular

Self Service

Create the document instantly yourself by entering the key details.

A$

220

Self-Service 🏗

Self Service

Self Service is not yet available for this document.

220

Lawyer-Assisted ✅

Lawyer Assisted

Create the document yourself with 30 mins help from a lawyer.

Create the legal document yourself with 1 hour help from a lawyer.

A$

550

Lawyer-Assisted ✅

Lawyer Assisted

Create the document yourself with 30 mins help from a lawyer.

Create the legal document yourself with 1 hour help from a lawyer.

A$

550

Lawyer-Assisted ✅

Lawyer Assisted

Lawyer Assisted is not yet available for this document.

Create the legal document yourself with 1 hour help from a lawyer.

Full Service

We create a bespoke document based on
your instructions.

From:

A$

550

Please turn your device to landscape mode to begin creating your document.

Please turn your device to landscape mode to begin creating your document.

Please turn your device to landscape mode to begin creating your document.

Please turn your device to landscape mode to begin creating your document.

Thank you! Your message has been received!
Oops! Please check your details and try again.

Commencing a Family Provision Claim in the NSW Supreme Court

Before you decide whether to commence a Family Provision Claim in the NSW Supreme Court we recommend you contact our legal team to obtain legal advice and assistance so that you are making a full informed decision.

At a minimum you will need to consider the following matters:

✅ Understanding whether "Adequate Provision" has been made for you under the Deceased's Will;

✅ Be filing your Family Provision Claim within the prescribed period;

✅ Confirm that you are eligible to make a Family Provision Claim;

✅ Ensure your Family Provision Claim is being made In accordance with the Supreme Court Practice Note SC Eq 7 ➲ Supreme Court Equity Division - Family Provision (the "Practice Note"); and

✅ Only make your Family Provision Claim as a last resort where settlement with the executor/s and all parties interested in the Deceased's Estate is not possible.

What is "Adequate Provision"?

➲ The importance of the Claimant's Financial Circumstances

Example: If $50,000 (from a $500k estate) was left to a theoretical Claimant under a Will

Does this bequest constitute "Adequate Provision" in all the circumstances?

The primary consideration for the court is the Claimant's Financial Circumstances:

⚖️ Do they own a home or not? If so, do they have a mortgage?

⚖️ Do they have a spouse or de facto who works?

⚖️ How much do they earn?

⚖️ How much do they have in superannuation?

⚖️ What are their future job prospects or opportunities?

⚖️ Do they have dependent children? etc..

If the Claimant does not have any clear financial need, then they probably will not succeed in a Family Provision Claim against the estate.

What if the Claimant is a "Multi-Billionaire"?

Continuing the above example, assume there are three children and one of the children has more money than they know what to do with (assume multi-billionaire), who receives only $50,000 whilst their siblings share in the balance of the estate.

This clearly isn't fair as the bequests are not equal.

If the multi-billionaire brought a Family Provision Claim on the basis that his/her parent should have left equal shares in the Will to all 3 children, his/her Family Provision Claim would be thrown out of court, and the billionaire would be ordered to pay the estate's legal costs.

The provision of $50,000 to the multi-billionaire is clearly more than adequate in the circumstances, and in such a scenario there is no legal basis that could possibly support a Family Provision Claim.

Even if the billionaire was left nothing, they would still have no legal basis to make a Family Provision Claim as there is no financial need!

What is the Prescribed Period for making a Family Provision Application in NSW ➲ Time Limit

The prescribed period within which to make a Family Provision Claim as of right in NSW is within 1 year of the Date of Death of the deceased.

This time may be extended by consent between the parties or if an application is made to the Court explaining the delay, by leave (approval) of the NSW Supreme Court.

Who is Eligible to make a Family Provision Claim in NSW?

The categories for eligibility to make a Family Provision Claim in NSW are listed below:

⚖️ A person who was the wife or husband of the deceased person at the time of the deceased person’s death;

⚖️ A person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death;

⚖️ A child of the deceased person;

⚖️ A former wife or husband of the deceased person;

⚖️ A person:

➲ Who was, at any particular time, wholly or partly dependent on the deceased person; and

➲ Who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member; or

⚖️ A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

Where does this DRAFT Plaintiff's Affidavit fit in?

In order to commence a Family Provision Claim in the NSW Supreme Court, a plaintiff must file and serve a Summons, together with the following documents prescribed in paragraph 6 of the Practice Note:

6. (a) A copy of the Affidavit of the Plaintiff adapted from the form in Annexure 1 to this Practice Note (this document).
6. (b) A  Notice  of  Eligible  Persons,  including  the  name  and,  if  known,  the address  of  any  person  who  is,  or  who  may  be,  an  eligible  person.  A copy of the notice is to be attached to the Summons or to the Plaintiff’s Principal Affidavit (this document).
6. (c) A copy of an Affidavit Setting out an Estimate of the Plaintiff’s Costs and Disbursements,  calculated  on  the  ordinary  basis,  up  to,  and  including, the completion of a mediation.
7. If the prescribed period for making the family provision application is about to expire  and  the  proceedings  are  being  commenced  to  preserve  rights,  the plaintiff must  file  and  serve  the  two  affidavits  and  the  notice  referred  to  in paragraph 6, no later than 5 working days before the first directions hearing or at such other time as the Court may order.

This document includes Embedded-Lawyer-Logic™ to guide you through our process which is designed to collect the information and generate your DRAFT Plaintiff's Affidavit in compliance with the Practice Note, as well as to confirm the above matters.

Why is a DRAFT Affidavit generated?

Due to the litigation risk involved in commencing legal proceedings, we recommend you seek legal advice before filing your claim, this document generates a DRAFT Plaintiff's Affidavit for review by our legal team so that it can be completed in consultation with you in preparation for your final signature.

What if you have already signed a Deed of Family Arrangement?

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 [1].

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 [2] 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 [3] 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.

s.95 Exception 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.

Footnotes

[1] Lieberman v Morris [1944] HCA 13

[2] [2001] WASC 45

[3] 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.

Test your knowledge and get a discount for this document: take the .

Enter the code WHen you pay full price to Purchase one of the following Self Service documents:

No items found.

Re-Enter the code at checkout each time you buy the following documents to get a discount:

No items found.

Resources

What clients say

swipe left or right to view more testimonials
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]

,

Google

23

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)

11

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]

,

Google Review not showing (Assume another AI error has occurred!)

3

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]

3

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)

6

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

12

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.

Wenyi

23

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

18

Dec 2022

Great Service and very professional!

Zhang Rose | NSW Real Estate Agent + Landlord

22

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.

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.

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.

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.

Can I insure against loss at trial in Australia?

AUSTRALIANS CAN NOW INSURE THEMSELVES AGAINST LOSS AT TRIAL

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.

Credits:

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