DRAFT Affidavit of Plaintiff ➲ NSW Family Provision Claim

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.