Family provision in Australia [Fifth edition.] 9780409345346, 0409345342

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To Margot, Alice and Geoffrey and to Damian and Jonathan, and in memory of Margaret

Family Provision in Australia Fifth Edition

John K de Groot BA, LLB, PhD (Qld) Special Counsel, de Groots Wills and Estate Lawyers Adjunct Professor, T C Beirne School of Law, University of Queensland

Bruce W Nickel BA, LLB (Qld) Retired Barrister at Law Former Deputy Director, Legal Services, Public Trust Office, Brisbane

LexisNexis Butterworths Australia 2017

AUSTRALIA

ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM

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de Groot, John K., Nickel, Bruce W Family provision in Australia / John K de Groot, Bruce W Nickel. 5th edition. 9780409346947 (pbk). 9780409345339 (hbk). 9780409345346 (ebk). Includes index. Decedents’ family maintenance — Australia. Probate law and practice — Australia.

© 2017 Reed International Books Australia Pty Limited trading as LexisNexis. First edition, Family Provision in Australia and New Zealand, 1993; second edition, Family Provision in Australia, 2001; third edition, Family Provision in Australia, 2007; fourth edition, Family Provision in Australia, 2012. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in StoneSans and StoneSerif. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

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Preface Although it is only five years since we completed the 4th edition of our text, much has changed in that time: Victoria’s experiment of abolishing categories of eligible applicants (in favour of the court deciding whether a person was someone the deceased had an obligation to provide for) was abandoned from 1 January 2015; Increasing judicial concern about the legal costs incurred in bringing a family provision claim, with resultant cost capping and other potential penalties; Cases involving small estates (Table 3.6), de facto widowers (Table 4.8), same-sex partners (Table 4.15) and foster children (Table 4.16) justified, as indicated, tabulating them for ready reference; and Judicial commentary and decided cases have required us to add seven new sections to the text — including ones on adult children as claimants [2.9], summary dismissal [2.64] and the duty of a personal representative in small estates [6.12]1 — and substantially review others, such as orders in applications by mentally ill persons [4.56] and extensions of time after a distribution [5.2].2 In all, approximately 300 new cases have been referenced in this edition and 85 cases added to the case tables, including the four new case tables referred to above. State and territory editors have considerably enhanced earlier editions of the text and this 5th edition is no exception. In fact, their contributions have been more significant than ever and we thank them for it. Where the comments of a state or territory

editor have been incorporated into the text without change or with minor editing only, the contribution has been specifically acknowledged. The material in Chapter 11 (other than Queensland) remains the state and territory editors’ respective, exclusive contribution. We have recorded our understanding of the law and practice in this area as at 1 September 2016. John K de Groot Bruce W Nickel Brisbane November 2016 ________________________________ 1.

Other new sections are Caveatable interest [2.65], Crisp orders [2.66], Special disability trusts [4.53] and Costs orders where applicant dies before trial [10.16].

2.

The other substantially revised sections are De facto wives in New South Wales [4.14], Costs in unsuccessful applications [10.3] and Costs in unsuccessful applications (NSW) [10.6].

Contributing Editors Australian Capital Territory

Wayne Sharwood, BEc, LLM; Barrister at Law

New South Wales

Mr Michael S Willmott SC, Barrister at Law

Northern Territory

Carolyn Walter, LLB, Barrister and Solicitor of the Supreme Court of the Northern Territory and Consultant to Ward Keller, Barristers and Solicitors of Darwin

South Australia

Ray Frost, LLB, Barrister and Solicitor of the Supreme Court of South Australia and consultant to Treloar & Treloar, Barristers and Solicitors of Adelaide, and Christopher Parker, LLB, Barrister and Solicitor of the Supreme Court of South Australia and partner at Treloar & Treloar, Barristers and Solicitors of Adelaide

Tasmania

Mr T Williams, Barrister and Solicitor of the Supreme Court of Tasmania

Victoria

Mr Peter Pascoe, BCom, LLM (Melb), Barrister at Law, Owen Dixon Chambers West

Western Australia

Mr J J Hockley, BSc (Hons), Dip Ed, PhD (UNE), LLB (UNSW), LLM (Melb), Dip Int’l Tax (Harv), Barrister, Francis Burt Chambers, Perth

Table of Cases References are to paragraphs

A Abrahams, Re [2015] QCA 286 …. 4.65 Abrego v Simpson [2008] NSWSC 215 …. 2.19, 2.66, 4.23 Adames v Ruhl (SC(NSW) Eq Div, Kearney J, No 3892/83, 8 March 1985, unreported) …. 2.29 Adamow, Re (1989) 97 FLR 410 …. 4.3, 10.2 Adams, Re [1967] VR 881 …. 2.11, 4.3, 4.8, 4.10, 4.32, 4.33, 4.34 Adams, Re (SC(Qld), Ryan J, OS No 607/87, 9 September 1987, unreported) …. 2.49 Adams v Schofield (CA(UK), 22 July 1981, unreported) …. 5.9, 5.18 Adkins v Adkins [2009] TASSC 8 …. 4.11 — v — (No 2) [2009] TASSC 32 …. 10.2, 10.10 Adoption Application, Re [1952] 1 Ch 16 …. 4.46 Ahearn v Ahearn [1917] St R Qd 167 …. 2.2, 2.25, 3.3, 4.3, 4.11, 8.14, 8.16, 10.2 Alagiah v Crouch [2015] QSC 281 …. 4.9 — v — [2015] QSC 313 …. 10.8 Alexander v Jansson [2009] NSWSC 1000 …. 2.5, 4.68 Allan v Public Trustee (1995) ACL Rep 395 NSW 34 …. 3.2 Allardice v Allardice [1911] AC 730 …. 1.6, 4.32

Allardice, Re; Allardice v Allardice (1910) 29 NZLR 959; 12 GLR 753 …. 2.2, 2.6, 2.25, 2.26, 4.3, 4.31, 4.32 Allen v Manchester [1921] GLR 613 …. 2.13, 3.8, 4.3 Alquist v ANZ Executors & Trustees Co [2004] NSWSC 1116 …. 4.50 Amos v Amos [1966] VR 442 …. 5.9 Amprimo v Wynn [2014] NSWSC 991; [2015] NSWCA 286 …. 4.14 Anasson v Phillips (SC(NSW) Eq Div, Young J, Nos 1125/86, 2900/85, 3413/86, 4 March 1988, unreported) …. 3.6, 3.7 Anderson, Re (1975) 11 SASR 276 …. 2.22, 4.29, 4.31, 4.32, 4.33, 4.34 Anderson, Re (SC(Qld) Civil Div, Kelly J, OS No 414/81, 30 May 1984, unreported) …. 3.4, 3.7, 4.29 Anderson v Teboneras [1990] VR 527 …. 2.19, 2.25, 4.32, 4.33, 4.34 Andre v Perpetual Trustees WA Ltd [2009] WASCA 14 …. 5.1 Andrew v Andrew [2011] NSWSC 115 …. 2.10 — v — (2012) 81 NSWLR 656; [2012] NSWCA 308 …. 2.2, 2.3, 2.10, 2.21 Andrews v Howard [1999] NSWCA 409 …. 4.69 Annett, Re [1956] NZLR 929 …. 5.17 Anon (1852) 68 ER 770 …. 7.29 Ansett v Moss [2007] VSC 92 …. 4.32 — v — [2007] VSCA 161 …. 5.13 Anslow v Journeaux [2009] VSC 250 …. 4.22 Aranas v Berry [2002] NSWSC 355 …. 4.22 Archibald, Re [1950] QWN 2 …. 2.25, 8.8 Armalis v Kasselouris [2006] SASC 198 …. 2.10, 4.31 Ashhurst v Moss (2006) 14 VR 291; [2006] VSC 287 …. 5.13

Ashton v Pratt (No 2) [2012] NSWSC 3 …. 4.12, 4.24 Askew v Askew [2015] NSWSC 192 …. 4.34 Assaff, Re (1962) NZLJ 292 …. 2.14, 2.25 Aston, Re (WA, 1997, Australian Lawyer, Vol 32, No 3, p 27, unreported) …. 4.28 Atkinson v Collector of Imposts [1919] VLR 105 …. 7.19 Atthow v McElhone [2010] QSC 177 …. 2.64 Attorney-General v Boden [1912] 1 KB 539 …. 4.16 Aubrey v Kain [2014] NSWSC 15 …. 2.2, 4.34 Avenell, Re (1991) 13 QL Rep 5 …. 2.43, 4.34, 7.30 Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 …. 9.2 A xiak v Axiak [2009] NSWSC 1319 …. 3.5, 4.34

B B, Re (1967) NZLJ 505 …. 2.41 Bailey, Re [1985] 2 NZLR 656 …. 7.3 Bailey v Public Trustee [1960] NZLR 741 …. 4.5, 4.6, 4.23, 4.47, 4.48 Baird v Harris [2015] NSWSC 803 …. 4.65 Baker, Re [1962] NZLR 758 …. 2.15, 2.18, 4.32, 4.52, 10.19 Baker v Williams & Brunner [2007] QSC 226 …. 5.16 Bakranich v Public Trustee (1991) ACL Rep 395 WA 4 …. 4.31 Ball v Newey (1988) 13 NSWLR 489 …. 5.10 — v Smith [2008] NSWSC 1129 …. 2.19 Banks v Seeman [2008] QSC 202 …. 2.64 Bannerman, Re [1962] NSWR 617 …. 4.31, 9.3

Barbour’s Settlement, Re [1974] 1 All ER 1188 …. 7.31 Barker v Westminster Trust Co (1941) 4 DLR 514 …. 2.29 Barlow, Re [1946] NZLR 38 …. 5.8 Barnes v Davies (1929) 30 SR (NSW) 5 …. 10.20 Barns v Barns (2001) 80 SASR 331 …. 2.47 — v — (2003) 214 CLR 169; 196 ALR 65 …. 1.1, 2.24, 7.8 Barnsley v Riakos [2011] NSWSC 635 …. 4.22 Barrass v Kaine [1999] NSWSC 245 …. 2.10 Barrett v Thurling [1984] 2 NSWLR 683 …. 4.43, 10.18 Barron, Re [1955] QWN 82 …. 2.14, 4.34, 10.2 Barrot, Re [1953] VLR 308 …. 2.17, 5.9, 5.13 Barry, Re (1974) 9 SASR 439 …. 5.9, 5.14 Bartkus v Bartkus [2010] NSWSC 889 …. 10.6 Bartlett v Coomber [2008] NSWCA 100 …. 2.2, 2.48 — v — (No 2) [2008] NSWCA 282 …. 10.2 Bates v Cooke (No 2) [2014] NSWSC 1322 …. 10.3 — v Cooke [2014] NSWSC 1259 …. 4.32 — v — [2015] NSWCA 278 …. 2.2, 2.3, 4.32 Beard, Re [1963] Qd R 90 …. 2.17, 4.3 Beaumont, Re [1980] 1 Ch 444; [1980] 1 All ER 226 …. 4.16, 4.67 Bell, Re (1915) 34 NZLR 1067 …. 2.2, 7.28 Bell, Re [1929] GLR 320 …. 3.7, 4.35 Bell v Elliott (1996) ACL Rep 395 NSW 61 …. 4.69 Bennett v Elders Trustee & Exec Co [1935] SASR 202 …. 4.7

Benney v Jones (1991) 23 NSWLR 559 …. 2.6, 4.69 Bentley v Brennan [2006] VSC 113 …. 2.10 — v —; Bull (No 2), Re [2006] VSC 226 …. 10.11 Berkelmans v Bulach [2009] VSC 472 …. 3.5, 4.31 Berry, Re [1903] WN 125 …. 7.29 Berry, Re (1957) 33 NZLJ 277 …. 4.32 Betar, Re (SC(NSW) Eq Div, Sugerman J, 9 April 1948, unreported) …. 4.52 Bevan, Re [1954] NZLR 1108 …. 3.2, 4.3, 4.25, 8.13 Bevilacqua v Robinson (No 2) [2008] NSWSC 520 …. 10.6 Bickford v Bickford [2006] WASC 268 …. 2.61, 5.15 Bidie, Re [1949] Ch 121; [1948] 2 All ER 995 …. 5.6 Birch, Re (1920) 42 ALT 39 …. 2.40, 10.2 Birch, Re [1929] NZLR 463 …. 8.7 Bird v Bird [2002] QSC 202 …. 5.12, 5.13 Birmingham v Renfrew (1937) 57 CLR 666 …. 7.5 Birrell v Birrell [2000] ACTSC 9 …. 11.4 Bishop, Re [1952] VLR 543 …. 8.7 Bishop v White [2006] NSWSC 354 …. 4.65 Black v McIntyre [1991] ACL Rep 395 Qld 20 …. 10.18 — v Owen [1936] GLR 168 …. 4.3 Blackburn v Mapp [1917] NZLR 565; [1917] GLR 358 …. 4.31, 8.5 Blackley v Proctor [2001] NSWSC 537 …. 4.70 Bladwell v Davis [2004] NSWCA 170 …. 4.3, 4.31

Blair v Blair (2004) 10 VR 69; [2004] VSCA 149 …. 2.6, 2.23, 4.32 — v Noble [2000] NSWSC 1106 …. 4.65 Blakemore, Re (1967) 1 NSWR 10 …. 8.2 Blanchfield v Johnson [2007] NSWSC 143 …. 2.19 Bleasel, Re (1906) 25 NZLR 974; 8 GLR 743 …. 4.29, 4.33, 8.5 Blood, Re [1983] 1 Qd R 104 …. 4.10 Blore v Lang (1960) 104 CLR 124 …. 2.2, 2.26, 2.29, 4.25, 4.31, 6.11 Blunden v Blunden [2008] SASC 286 …. 2.61, 5.2, 5.13 Blyth, Re [1959] NZLR 1313; (1959) 35 NZLJ 241 …. 4.11, 6.6, 9.3 Bodman, Re [1972] Qd R 281 …. 2.4, 2.22, 2.28, 4.29, 4.31, 10.2, 10.3, 10.6, 10.8 Bolger v McDermott [2013] NSWSC 919 …. 2.5, 4.31 Bondelmonte v Blanckensee [1989] WAR 305 …. 2.3, 2.14, 2.17, 2.23, 4.31 Bone, Re [1955] 2 All ER 555; [1955] 1 WLR 703 …. 5.18 Bongers, Re [1969] 2 NSWR 93 …. 4.3 Bonham, Re (1962) 112 LJo 634 …. 4.23 Boniecki v Brown [2006] NSWSC 306 …. 4.31, 4.34 Booth v Booth [2002] NSWSC 836 …. 2.10 Borebor v Keane [2013] VSC 35 …. 4.50, 4.72 Borthwick, Re [1948] Ch 645; [1948] 2 All ER 635 …. 6.11 Borthwick, Re [1949] 1 Ch 395 …. 2.15, 4.7 Bosch v Perpetual Trustee Co [1938] AC 463 …. 1.6, 2.2, 2.5, 2.6, 2.20, 2.25, 3.4, 3.5, 3.7, 4.3, 4.25 Bourke, Re [1968] 2 NSWR 452 …. 4.23

Bourke v Keep [2011] NSWSC 88 …. 2.10 Bowcock, Re [1968] 2 NSWR 700 …. 2.5, 3.4, 3.7, 4.3, 6.8, 10.21 Bowcock v Bowcock (1969) 90 WN (Pt 1) NSW 721 …. 9.8, 10.2, 10.17, 10.21 Bowditch v NSW Trustee & Guardian [2012] NSWSC 275 …. 2.9, 4.67, 10.6 Bowers v McGann (1996) DFC 95-172 …. 4.22 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 …. 2.2, 2.6, 10.2, 10.4, 10.7, 10.8, 10.9, 10.14 Boyce v Humphreys (1974) 48 ALJR 229 …. 2.22, 4.3, 10.18 Boyd v State Trustees Ltd [2008] VSC 18 …. 4.65 Boykett v Boykett (1998) ACL Rep 395 WA 4 …. 2.10 Bradbury, Re [1947] St R Qd 171 …. 2.40, 4.7, 4.11 Bradbury, Re [1958] QWN 2 …. 7.11 Brand v Brand [2015] NSWSC 52 …. 4.33, 4.34 Brandon v Hanley [2014] VSC 103 …. 2.8, 2.9, 4.34 Brasnett, Re [1941] QWN 32 …. 10.2, 10.20 Breen, Re [1933] VLR 455 …. 8.2, 8.7 Bremner v Graham [2016] NSWSC 633 …. 4.68 Brennan v Mansfield [2013] SASC 83 …. 4.69 Breuer v Wright [1982] 2 NZLR 77 …. 7.5, 7.7 Bridges, Re (1974) 8 SASR 268 …. 3.2, 4.25 Bridges, Re (1975) 12 SASR 1 …. 3.2 Brien, Re [1953] VLR 585 …. 5.5 Briggs v Mantz (No 2) [2014] VSC 487 …. 10.3, 10.11

Brinkkotter v Pelling [2006] VSC 101 …. 3.3 Britcher, Re (SC(Qld), Dowsett J, OS No 17/85, 10 November 1987, unreported) …. 3.3 Broadhead v Prescott [2015] SASC 34 …. 2.61, 4.34 Brooks, Re (1979) 22 SASR 398 …. 3.2, 7.16, 10.2 Brown (dec’d), Re [2016] VSC 258 …. 4.22 Brown, Re (1906) 26 NZLR 762 …. 4.23 Brown, Re [1946] QWN 43 …. 4.34 Brown, Re [1949] NZLR 509 …. 5.10, 5.13 Brown, Re [1952] St R Qd 47 …. 2.28, 8.7 Brown, Re [1972] VR 36 …. 2.3, 4.23 Brown v Brown (1921) 22 SR (NSW) 106; 38 WN 255 …. 7.19, 8.12 — v Faggoter [1998] NSWCA 44 …. 2.58 — v Grosfeld [2011] NSWSC 796 …. 4.31, 4.34, 7.30, 8.12, 8.16 — v Holt [1961] VR 435 …. 5.11, 5.18 Browne v Browne [2009] NSWSC 1399 …. 4.11 — v Macaulay [1999] WASC 208 …. 2.10 Bruxner, Re (SC(Qld), de Jersey J, OS No 975/92, 22 July 1993, unreported) …. 3.3 Buckeridge v Buckeridge [2016] WASC 163 …. 4.67, 5.13 Buckland, Re [1966] VR 404 …. 2.5, 2.25, 3.4, 3.7, 4.31 Buckland (No 2), Re [1967] VR 3 …. 2.14, 3.4, 3.5, 3.7, 4.31, 4.32, 4.34, 7.11, 7.12, 7.13, 7.15 Buffalora, Re [1956] NZLR 1017 …. 4.25, 4.45 Bunning, Re [1984] 1 Ch 480; [1984] 3 WLR 265 …. 2.15, 4.7

Burgess, Re [1984] 2 Qd R 379 …. 5.16 Burke, Re (1997) ACL Rep 395 SA 4 …. 3.2 Burke v Burke [2015] NSWCA 195 …. 2.3, 2.9, 9.3 Burns v Elder’s Trustee & Executor Co Ltd [1968] SASR 297 …. 5.6 Burt, Re [1985] 2 Qd R 335 …. 4.37 Burt, Re [1988] 1 Qd R 23…. 4.37, 4.38, 4.40 Burton, Re [1958] QWN 27 …. 6.6, 6.8 Burton v Moss [2010] NSWSC 163 …. 5.12 Butchart, Re [1932] NZLR 125 …. 7.3 Butcher v Craig [2009] WASC 164 …. 4.32 Butler, Re (1923) 23 SR (NSW) 540 …. 2.31 Butler, Re [1948] VLR 434 …. 8.7, 8.17 Butler v Morris [2012] NSWSC 748 …. 2.9, 4.49, 4.65 Byrne-Jones v Marshall (2001) ACL Rep 395 NSW 33 …. 7.15

C Cairns, Re [1950] GLR 409 …. 7.10 Cairns v Cairns [2006] NSWSC 367 …. 4.29 Calder, Re [1950] GLR 465 …. 4.11 Calderbank v Calderbank [1976] Fam 93 …. 10.2 Callaghan, Re [1984] 3 All ER 790 …. 3.2, 4.44 Camernik v Reholc [2012] NSWSC 1537 …. 2.9 Cameron, Re (1905) 25 NZLR 907; 8 GLR 428 …. 4.31, 10.21 Cameron v Cameron [2009] SASC 27 …. 2.10, 4.31 — v Davidson [2014] NSWSC 702 …. 4.67

— v Hills (SC(NSW), Needham J, 26 October 1989, unreported) …. 2.51 — v Vial [2009] NSWSC 79 …. 4.3, 4.22 Campbell, Re [1951] GLR 287 …. 2.15, 3.3, 4.31, 4.33, 8.16 Campbell v Chabert-McKay [2010] NSWSC 859 …. 4.29, 5.12 — v Hemmings [2015] NSWSC 1592 …. 2.18 Cangia v Cangia [2008] VSC 455 …. 2.18, 10.2 — v — (No 2) [2008] VSC 556 …. 10.2 Cannings v Cannings [2010] NSWSC 87 …. 3.5, 4.11 Carey v Robson [2009] NSWSC 1142 …. 4.31 — v — (No 2) [2009] NSWSC 1199 …. 10.6, 11.9 Carlaw, Re [1966] 1 NSWR 148 …. 4.31, 8.9 Carn, Re; Moerth v Moerth (No 2) [2011] VSC 275 …. 10.11 Carney v Jones [2012] NSWSC 352 …. 4.71 Carragher v Crook [2009] NSWSC 191 …. 2.58, 4.44 Carrick v Public Trustee (NSW) [2002] NSWSC 1000 …. 4.31 Carroll v Cowburn [2002] NSWSC 248 …. 4.50 Carruthers v Marshall [2001] NSWSC 665 …. 4.22 Carter v Executor Trustee & Agency Co of South Australia (1974) 62 LSJS 159 …. 11.23 — v O’Brien [2007] VSC 21 …. 4.70 Caska v Caska [1999] NSWSC 289 …. 2.33, 4.32 Casper v Casper [2007] NSWSC 796 …. 4.71 Cassaniti v Cassaniti [2008] NSWSC 258 …. 2.10, 4.32, 10.6

Catelan v Herceg [2012] QSC 320 …. 2.64 Celis v Orrego (SC(NSW), Young J, 16 June 2000, unreported) …. 8.18 Central Trust and Safe Deposit Co v Snider [1916] 1 AC 266 …. 7.5 Cerneaz v Cerneaz [2015] QDC 41 …. 4.11 — v — (No 2) [2015] QDC 73 …. 10.2, 10.3, 10.9 Cetojevic v Cetojevic [2006] NSWSC 431 …. 2.55, 5.12, 5.18 — v — [2007] NSWCA 33 …. 2.51 Chaloner v Chaloner [2009] NSWSC 84 …. 3.8, 4.29, 8.9 Chamberlaine v Chamberlaine (1678) 2 Freem Ch 34; 2 Eq Cas Abr 43; 22 ER 1041 …. 7.5 — v — (1680) 2 Freem Ch 52; 2 Eq Cas Abr 415; 22 ER 1053 …. 7.5 Chan v Chan [2016] NSWCA 222 …. 2.2, 2.5, 5.11 Chandler v Coulson [2015] NSWSC 172 …. 4.24 Chapman, Re [1918] St R Qd 226 …. 4.32, 10.4, 10.8 Chapman v Elder’s Trustee & Executor Co [1971] SASR 63 …. 2.17, 4.3 — v Ingold [2015] NSWSC 1604 …. 2.9, 4.31 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 …. 2.9, 2.21, 3.3, 4.67 Charles v Charles (SC(NSW) Eq Div, Young J, No 3302/86, 25 March 1988, unreported) …. 5.18 Charlesworth v Herring [2007] NSWSC 312 …. 2.10 Charman, Re [1951] 2 TLR 1095; [1951] WN 599 …. 2.17 Charnock v Handley [2011] NSWSC 1408 …. 3.8, 5.12 Chatard v Bowen [2008] NSWSC 533 …. 3.4, 4.23 Chennell, Re (1878) 8 Ch D 492 …. 9.8

Chernoff Estate, Re (1960) 32 WWR 473 …. 2.39 Chester, Re (1978) 19 SASR 247 …. 2.49 Chittenden, Re [1970] 3 All ER 562 …. 5.8 Chris v Wood [2007] NSWSC 377 …. 4.29 Christie, Re [1979] 1 Ch 168 …. 4.33 Christie, Re (SC(Qld), Ryan J, OS No 112/85, 18 December 1985, unreported) …. 4.23 Christie v Christie [2016] WASC 45 …. 2.42 — v Manera [2006] WASC 287 …. 2.3, 4.31, 4.34 Churchill, Re [1978] 1 NZLR 744 …. 4.3, 4.7 Churton v Christian (1988) 13 NSWLR 241; 12 Fam LR 386 …. 2.58, 4.3, 4.8, 4.10, 4.43, 10.17 Ciric v Ciric [2015] NSWSC 313 …. 2.9, 3.8, 4.33 CK, Re [1950] GLR 296 …. 4.4, 4.5, 4.45, 10.18 Clapham v Clapham (1992) ACL Rep 395 NSW 11 …. 4.68 Clark v Leyshan [2007] NSWSC 52 …. 4.34 Clarke v Clarke [2008] NSWSC 1130 …. 4.29, 7.30, 8.16 — v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 …. 9.6 Claverie, Re (1970) 91 WN (NSW) 858 …. 4.5, 5.9, 5.10 Clayton, Re [1966] 1 WLR 969 …. 4.23 Clayton v Aust (1993) 9 WAR 364 …. 5.9, 5.15 Cleaver, Re [1950] GLR 68 …. 4.34, 7.11 Clemson v Barber [2011] NSWSC 995 …. 4.11 Clifford v Mayr [2010] NSWCA 6 …. 4.3, 4.22, 7.4

Clift, Re [1963] NSWR 1313 …. 9.3 Clinch v Swift (SC(NSW) Eq Div, Young J, No 3008/85, 13 October 1986, unreported) …. 4.72 Clissold, Re [1970] 2 NSWR 619 …. 4.7 Close v Close [2001] NSWSC 668 …. 2.16, 4.50 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 …. 2.3, 2.6, 2.14, 2.15, 2.24, 2.25, 2.28, 4.32, 4.34, 5.9, 9.3, 10.17 — v Public Trustee [2007] NSWSC 647 …. 2.58, 3.2, 4.45 — v Thomas [1947] NZLR 779 …. 2.38 Cobb, Re [1989] 1 Qd R 522 …. 4.16, 4.22, 10.2 Cockburn’s Will Trusts, Re [1957] Ch 438 …. 5.16 Cocker v Cocker [1955] NZLR 312 …. 7.11, 7.13 Coe, Re (1992) ACL Rep 395 Qld 22 …. 4.22 Coffey v Bennett [1961] VR 264 …. 2.29, 2.33, 5.9 Cole, Re (1958) 12 DLR (2d) 406 …. 4.3, 4.11 Colebatch v Colebatch [2007] NSWSC 30 …. 3.4, 4.34, 7.11 Collett, Re; Collett v Public Trustee [1936] NZLR 9 …. 4.4, 4.6 Collett v Knox [2010] QSC 132 …. 4.24, 6.12, 10.21 Collicoat v McMillan [1999] 3 VR 803 …. 2.6, 2.33, 4.32 Collin, Re (1929) 29 SR (NSW) 548 …. 8.7 Collings v Vakas [2006] NSWSC 393 …. 4.29, 7.2, 10.3, 10.6 Collins, Re [1990] 2 WLR 161 …. 3.2, 4.48 Collins v Mutton [2012] NSWSC 548 …. 2.5 — v Public Trustee [1927] GLR 390 …. 2.25, 4.3, 4.25

— v — [1929] NZLR 420 …. 8.7, 8.19 Colquhoun v Public Trustee (1912) 31 NZLR 1139; 14 GLR 432 …. 2.2, 4.23, 4.31, 8.5 Commissioner of Stamp Duties (Q) v Livingston (1964) 112 CLR 12; [1965] AC 694 …. 8.20 Commissioner of Taxation v Bamford (2010) ATC 20-170 …. 7.22 Commonwealth v Gratton [2008] NSWCA 117 …. 10.2 Conlon v Public Trustee [2002] NSWSC 153 …. 4.72 Connor, Re (1908) 11 GLR 349 …. 8.16 Contencin v Tasmanian Perpetual Trustees Ltd [2010] TASSC 3 …. 2.18 Cook, Re (1985) 59 ALJR 669 …. 4.37 Cook, Re (SC(Qld), Ryan J, OS No 1150/91, 11 September 1992, unreported) …. 4.28 Cook v Webb [1918] GLR 282 …. 6.10, 8.16 — v — [1918] NZLR 664; [1918] GLR 457 …. 6.10, 8.16 Coombes v Ward (2002) ACL Rep 395 Vic 4 …. 4.45 — v — [2004] VSCA 51 …. 4.42 — v — (No 2) [2002] VSC 84 …. 10.4, 10.11 Cooper, Re [1970] 2 NSWR 182 …. 2.43, 3.3, 4.33, 4.34 Cooper v Dungan (1976) 9 ALR 93; 50 ALJR 539 …. 2.2, 2.10, 4.31, 9.3, 10.17 Cope v Keene (1968) 118 CLR 1 …. 4.25 — v Public Trustee of Queensland [2013] QDC 176 …. 3.8, 10.3 Corbey v Boonstra [1923] GLR 433 …. 5.9

Corcoran v Bizannes (SC(NSW), Needham J in Eq, No 2076/84, 4 June 1985, unreported) …. 4.70, 4.72 Corich v Public Trustee [2006] WASC 16 …. 4.22 Costigan v Norton [2005] VSC 208 …. 4.65 Cotton v Owen [1999] SASC 391 …. 8.2 Coull, Re [1952] GLR 368 …. 4.25 Courthope v Courthope (1939) 41 WALR 66 …. 2.26, 4.33, 4.34 Courtney v Powell [2012] NSWSC 460 …. 2.10, 4.34 Coventry, Re [1979] 3 All ER 815 …. 2.5, 3.8 Craig v Craig [2015] WASC 109 …. 2.63 Crandon v Crandon [2014] QSC 93 …. 2.64 Crewe, Re [1955] NZLR 210 …. 7.11, 7.12, 8.16 Crewe, Re [1956] NZLR 315 …. 2.15, 2.21, 4.25 Crisp v Burns Philp Trustee Company Ltd (SC(NSW), Holland J, 18 December 1979, unreported) …. 2.66 Crook v Elders Trustee & Executor Co Ltd (1986) 132 LSJS 121 …. 4.33, 4.34 Cropley v Cropley [2002] NSWSC 349 …. 4.3 Cross v Wasson [2009] NSWSC 378 …. 2.37, 2.66, 4.23 Crowe, Re (1935) 35 SR (NSW) 547 …. 4.3 Crowley, Re [1949] St R Qd 189 …. 2.33, 8.19 Cunningham v Cunningham [1936] GLR 419 …. 4.3, 4.11 Curran v Duncan [2006] WASC 9 …. 2.10, 4.29 — v Harvey [2012] NSWSC 276 …. 2.42, 2.58, 4.29, 8.9 — v McGrath [2010] QCA 308 …. 5.10

Currey v Gault [2010] QSC 27 …. 4.44 Curtis v Adams [1933] NZLR 385 …. 4.52, 10.19 Cutts, Re [1969] VR 254 …. 4.3, 4.8, 4.10

D D J Singh v Singh [2015] NSWSC 1457 …. 7.2 Daebritz v Gandy (2001) ACL Rep 395 WA 5 …. 2.47 D’Albora v D’Albora [1999] NSWSC 468 …. 6.3 Dalton, Re [1952] GLR 230 …. 2.15, 4.7, 8.16 Dalton v Ellis (2005) 65 NSWLR 134 …. 10.6 — v Paull [2007] NSWSC 721 …. 4.72 Danes, Re [1989] 2 Qd R 236 …. 4.37 Daniel v Van Zwol [2015] SASFC 38 …. 4.33 — v — [2015] SASFC 93 …. 10.18 Daniels v Hall (SC(WA), White J, No 2671/89, 11 February 1992, unreported) …. 10.12 — v — [2014] WASC 152 …. 4.32 — v — (No 2) [2014] WASC 272 …. 10.13, 10.14 D’Antoine v Field (1923) 19 Tas LR 21 …. 4.4, 4.6 Dare v Furness (1998) 44 NSWLR 493 …. 2.55, 5.12 Darkinjung Local Aboriginal Land Council v Darkinjung Pty Ltd [2010] NSWCA 351 …. 4.31 Darveniza v Darveniza [2014] QSC 37 …. 3.7 Davey v Fairhead (1996) ACL Rep 395 WA 7 …. 3.3, 4.31 Davies v Collector of Imposts [1908] VLR 272 …. 7.19

Davis, Re [1952] VLR 517 …. 7.4 Davis v Davis [2012] NSWSC 201 …. 4.65, 5.12 — v — [2014] NSWSC 234 …. 4.30 — v Fordham [2008] NSWSC 182 …. 2.58 — v Public Trustee [2007] NSWSC 731 …. 3.2 Dawson v Fitch (2002) 84 SASR 20; [2002] SASC 12 …. 5.16 — v Joyner [2011] QSC 385 …. 4.32 Day v Raudino [2009] VASC 463 …. 4.67, 5.13 de Angelis v de Angelis [2003] VSC 432 …. 2.5 De Feu, Re [1964] VR 420 …. 2.28, 2.38, 4.5, 4.6, 4.9, 10.4, 10.6, 10.11, 10.15 de Groot v de Groot (1989) 13 Fam LR 292 …. 7.29 De Poli, Re [1964] NSWR 424 …. 2.28, 2.36, 2.40 De Renzi v De Renzi (1915) 17 GLR 620 …. 4.3, 8.6, 8.7, 8.10 Debono, Re (1992) ACL Rep 395 Qld 21 …. 7.4 Dehnert v Perpetual Executors and Trustees (1954) 91 CLR 177 …. 4.45, 10.17 Deis v Deis (1983) 21 Sask R 328 …. 4.65 Delacour v Waddington (1953) 89 CLR 117 …. 2.39, 4.7 Delisio v Santoro (2002) 218 LSJS 199 …. 5.14 Devonshire v Hyde [2002] NSWSC 30 …. 4.69 Dey v Victorian Railway Commissioners (1948) 78 CLR 62 …. 7.29 Di Mauro v Sciara [2015] NSWSC 1796 …. 2.8, 2.10 Di Salvo v Public Trustee [2009] NSWSC 894 …. 4.22

Diack v Public Trustee [1941] GLR 215 …. 2.22, 3.2, 4.3, 4.11 Dick, Re (SC(Qld), Lee M, OS No 67/83, 12 August 1985, unreported) …. 4.65 Dickie v Dickie (SC(NSW) Eq Div, Gressier M, No 2652/84, 21 February 1986, unreported) …. 2.17 Diggins v Lord (1993) ACL Rep 395 WA 5 …. 4.51, 4.60 Dijkhuijs v Barclay (1988) 13 NSWLR 639 …. 2.23, 4.8, 6.6, 7.16, 9.8, 10.17 Dillon, Re [1938] NZLR 693; [1939] NZLR 550 …. 7.5, 7.6 Dillon v Public Trustee NZ [1941] AC 294 …. 2.47, 4.11, 7.5, 7.6, 7.7, 7.8, 8.16 Dimic v Djekovic [2014] NSWSC 1502 …. 3.7, 4.22 Dingle, Re (1921) 21 (NSW) 723 …. 2.40, 4.7 Dion v Rieser [2010] NSWSC 50 …. 4.14 Diver v Diver [2007] VSC 146 …. 4.62 — v Neal [2009] NSWCA 54 …. 2.10, 2.36, 2.58 Dix v Burford (1854) 19 Beav 409; 52 ER 408 …. 5.16 Dobb v Hacket (1993) 10 WAR 532 …. 3.5, 4.31, 10.2, 10.6 Dobell v Van Damme [1982] VR 425 …. 4.9, 10.4, 10.11, 10.14, 10.15 Dobson, Re [1991] NZFLR 403 …. 4.33 Dobson v Dobson [1947] VLR 244 …. 4.16 Doddrige v Badenach [2011] TASSC 34 …. 2.10, 4.29 Dodds v Dodds [2013] NSWSC 1933 …. 4.32 Dodge v Blissenden [2009] TASSC 116 …. 7.2 Domaradzka v Wawazyniuk [2014] NSWSC 1614 …. 4.22

Donkin, Re [1966] Qd R 96 …. 2.61, 5.10 Donnelly, Re (1927) 28 SR (NSW) 34 …. 7.3 Donnelly, Re (1927) 44 WN (NSW) 72 …. 10.14 Donohue, Re [1933] NZLR 477; [1933] GLR 415 …. 2.61, 5.16 Doogan, Re (1923) 23 SR (NSW) 484 …. 2.47 Doshen v Pedisich [2013] NSWSC 1507 …. 2.58, 4.44 Drager, Re [1961] NZLR 855 …. 2.17 Draper v Nixon [1999] NSWSC 629 …. 2.37 Dudic v Jakovljevic [2014] NSWSC 169 …. 3.2, 4.29 Due, Re [1977] 1 NZLR 696 …. 10.22 Duff, Re (1948) 48 SR (NSW) 510 …. 2.33, 4.51, 4.52, 4.65 Duffy v Duffy [2014] NSWSC 216 …. 3.8, 10.6 — v O’Connor (1866) 1 Ch 393 …. 7.29 Dugac v Dugac [2012] NSWSC 192 …. 2.2, 2.9, 4.29, 10.6 Dun, Re [1956] SR (NSW) 181 …. 5.10 Dun v Dun (1959) 100 CLR 361; [1959] AC 272 …. 2.2, 2.28, 10.18 Duncan, Re [1939] VLR 355 …. 2.2, 2.23, 2.25, 2.42, 2.44, 10.18, 10.21 Duncan v Perpetual Trustees WA Ltd (1995) ACL Rep 395 WA 1 …. 5.10 Durham v Durham [2010] NSWSC 389 …. 5.12 DW v RW [2013] QDC 163 …. 2.5, 4.34 — v — (No 2) [2013] QDC 189 …. 10.8 Dyer, Re [1949] GLR 427 …. 8.7

E

E, Re [1966] 2 All ER 44 …. 2.13, 4.52 E, Re [1985] 1 All ER 609 …. 7.28 E v E (1915) 34 NZLR 785 …. 3.7, 4.3, 8.6, 8.7, 8.10 Easterbrook v Young (1977) 51 ALJR 456 …. 4.3, 5.7, 5.10, 5.16 Easton, Re [1958] NZLR 125 …. 2.5 Eather v Maher [2006] NSWSC 746 …. 2.10 Ebert v Ebert [2008] NSWSC 1206 …. 5.12 Eckersley v Eckersley [2016] WASC 154 …. 8.16 Eckert v Starick (1993) ACL Rep 395 SA 7 …. 4.67 Edgar, Re [1962] Tas SR 145 …. 8.17 Edgar v Public Trustee NT [2011] NTSC 5 …. 4.32, 10.7 Edwards, Re [1958] Ch 167 …. 7.5 Edwards v Edwards [2000] NSWSC 1210 …. 4.29, 8.19 — v — [2003] NSWSC 409 …. 3.2, 4.25 — v Terry [2002] NSWSC 835 …. 3.8 Effingham v Napier (1727) 4 Bro Parl Cas 340; 2 ER 230 …. 7.29 Elliott, Re [1941] 2 DLR 71 …. 7.3 Elliott, Re [1956] CLY 9249 …. 2.15, 2.17 Elliott v Elliott (SC(NSW), Powell J, No 4422/80, 18 May 1984, unreported) …. 4.3 Ellis v Leeder (1951) 82 CLR 645 …. 3.8, 10.2 Else, Re [1948] VLR 468 …. 8.12, 8.16 Elwell, Re [1977] Qd R 141 …. 2.3, 2.4, 2.23 Emery v Clough (1886) 63 NH 552; 4 A 796 …. 2.60

Enoch v Public Trustee [2006] 1 Qd R 144; [2005] QSC 194 …. 5.12 Epov v Epov [2014] NSWSC 1086 …. 4.3, 4.23 Ernst v Mowbray [2004] NSWSC 1140 …. 5.2 Estall, Re (1913) 16 GLR 185 …. 4.3, 4.31 Estate Pascale, Re [2016] NSWSC 443 …. 4.72, 7.30 Estrella v McDonald [2012] VSC 62 …. 4.69 Evans v Levy [2010] NSWSC 504 …. 2.10, 10.6 — v Perpetual [2012] NSWSC 139 …. 2.20, 4.30, 4.49

F F, Re [1940] St R Qd 290 …. 2.22, 4.31 Fagan, Re (1980) 23 SASR 454 …. 4.18 Fahy v Barrs [2006] NSWSC 1321 …. 4.24 Falkingham v Falkingham [2002] NSWSC 534 …. 3.5, 4.71 Faltas v Hong Peng [2014] NSWSC 1922 …. 2.48, 7.30 Fanning v Harding [2013] VSCA 208 …. 4.72, 5.7 Farr v Hardy [2008] NSWSC 996 …. 4.3 Faulkner, Re [1999] 2 Qd R 49 …. 6.2 Faulkner v McLeod [2011] NSWSC 92 …. 6.11 FB, Re (1989) 147 LSJS 57 …. 4.27 Feehan v Toomey [2014] VSC 488 …. 4.67 Fellows v Paterson [2002] NSWSC 190 …. 3.3, 4.31 Fenato v Antonello [2006] NSWSC 763 …. 4.23 Field v Inglis (SC(NSW), Macready M, S3795/93, 1995, unreported) …. 3.7

Fielder v Brooker [2001] NSWSC 981 …. 2.10 Findlay, Re (1964) NZLJ 170 …. 2.29, 2.30 Finlay v Mack [2001] NSWSC 443 …. 4.31 Fiorentini v O’Neill [1998] NSWCA 79 …. 6.11 Fisher v Grove [2003] WASCA 3 …. 3.3 — v Thomson [2006] NSWSC 527 …. 2.62, 3.7 Fitzgerald v Fitzgerald [2009] NSWSC 884 …. 4.34 Fletcher, Re [1921] NZLR 649; [1921] GLR 429 …. 4.33, 4.34, 4.35, 8.9, 8.16, 10.21 Fletcher v Furnance [2008] NSWSC 132 …. 2.60 Flinn v Fearne [1999] NSWSC 1041 …. 2.51 Foley v Ellis [2008] NSWCA 288 …. 2.10, 2.36 — v Foley [2008] NSWSC 233 …. 5.12 Foote, Re (SC(Qld), Macrossan J, OS No 460/79, 25 March 1980, unreported) …. 4.31, 4.32, 10.3, 10.8 Footersville Pty Ltd v Miles (1986) 41 SASR 211 …. 9.6 Ford v Simes [2008] NSWSC 1120 …. 2.10, 2.42 — v — [2009] NSWCA 351 …. 2.10, 2.42 Forsyth v Sinclair [2010] VSCA 147 …. 4.20 — v — (No 2) [2010] VSCA 195 …. 10.3, 10.6 Foster v Lisle [2003] NSWSC 1243 …. 4.52 Foti v Foti [2008] QSC 284 …. 3.3 Found, Re [1924] SASR 236 …. 2.47, 7.3, 10.2 Fox v Burvill (1955) 29 ALJ 414 …. 4.9, 6.8, 10.15, 10.18

— v McDowell [1921] GLR 157 …. 8.6, 8.7 Foye v Foye [2008] NSWSC 1305 …. 7.2 Frame, Re (1984) 116 LSJS 222 …. 4.67 Franklyn v Biddy [1960] 2 WIR 346 …. 7.15 Franks v Kitson (2000) ACL Rep 395 WA 5 …. 4.67 Fraser v Simmonds [2014] NSWSC 654 …. 4.67 Freeman v Jacques [2005] QSC 200 …. 4.44 — v — [2006] 1 Qd R 318; [2005] QCA 423 …. 4.36, 10.18 Frey v Frey [2009] QSC 43 …. 2.3, 3.3 Fricano v Lagana [2009] NSWSC 840 …. 2.10, 4.50 Friend v Brien [2014] NSWSC 613 …. 4.31 Frisoli v Kourea [2013] NSWSC 1166 …. 3.2 Frohlich v Herborn [2012] NSWSC 338 …. 4.34 Fullard, Re [1981] 2 All ER 796; [1982] Fam 42 …. 4.10, 7.16 Fuller, Re (1917) 17 SR (NSW) 348 …. 4.32 Fulop, Re (1987) 8 NSWLR 679 …. 2.58, 4.43, 4.44, 4.67, 10.2 Fulton v Fulton [2014] NSWSC 619 …. 2.2 — v — (No 2) [2014] NSWSC 857 …. 10.2 Furesh v Schor [2013] WASCA 231 …. 4.28

G Gabriele v Gabriele [2015] VSC 115 …. 4.50 Gair, Re (1913) 33 NZLR 212 …. 4.31, 8.16 Gardiner v Boag [1923] NZLR 739 …. 2.47 — v Gardiner [2014] NSWSC 435 …. 4.29, 8.15, 10.2

Garofolo v Capogreco [2006] NSWSC 1116 …. 4.11 Gaynor, Re [1960] VR 640 …. 2.49 Gear, Re [1964] Qd R 528 …. 4.7, 9.3 Geary, Re [1971] NZLR 523 …. 5.8 Geen v Geen (1913) 33 NZLR 81 …. 4.7 Gerlach v Public Trustee (1998) ACL Rep 395 Tas 3 …. 4.7 Gerloff, Re [1933] SASR 351 …. 4.7 Gerloff, Re [1941] SASR 156 …. 4.31 Gibson v Haselgrove [2009] NSWSC 496 …. 4.7, 4.22, 5.18 Gigliotti v Gigliotti [2002] VSC 279 …. 2.63 Gilbert, Re (1946) 46 SR (NSW) 318 …. 2.34, 2.36, 2.41, 4.11, 9.3 Gill v Smith [2007] NSWSC 832 …. 10.2, 10.6 Gillis v Laverty (SC(NSW), Waddell CJ in Eq, No 2081/85, 1 March 1989, unreported) …. 3.3 Gilmore, Re (1963) 5 FLR 371 …. 5.13, 6.8 Gilpin (No 2), Re [1946] VLR 417 …. 7.4 Gimblett, Re [1960] NZLR 664 …. 6.2, 6.3 Glasgow v Glasgow (1911) 13 GLR 647 …. 4.29, 4.33, 4.34 Glassford v Murphy (1878) 4 VLR (L) 123 …. 7.27, 7.28, 7.29 Glynne v NSW Trustee & Guardian …. 4.32 Godwin, Re [1948] QWN 1 …. 7.4 Going, Re (1907) 9 GLR 485 …. 8.16 Goldberg v Landerer; Kennedy v Landerer [2010] NSWSC 1431 …. 2.34, 4.29, 4.34, 4.50

Golightly v Jefcoate (1913) 33 NZLR 91 …. 4.23 Golosky v Golosky (CA(NSW), CA40012/91, 5 October 1993, unreported) …. 4.22, 9.3 Goodchild v James (1994) 13 WAR 229 …. 4.32 Goodman v Windeyer (1980) 144 CLR 490; 54 ALJR 470; [1980] HCA 31 …. 2.2, 2.6, 3.5, 4.11, 4.31, 4.33, 4.34, 6.11, 10.17 Goodwin, Re [1958] NZLR 320 …. 4.25, 4.34 Goold v Field [2005] QSC 310 …. 4.29 Gorton v Parks (1989) 17 NSWLR 1 …. 2.10, 2.14, 2.21, 2.22, 4.31, 4.32, 4.34, 10.2 Gough, Re (1973) 5 SASR 559 …. 5.16, 6.2 Govers v Luff (1997) ACL Rep 205 NSW 47 …. 4.28 — v — (2000) ACL Rep 395 NSW 44 …. 4.56, 4.58, 4.65 Gracia, Re; Newman v Newton [1927] GLR 215 …. 4.4, 5.10 Graham v Graham [2011] NSWSC 504 …. 4.3, 4.11 Gray, Re (1959) 76 WN (NSW) 415 …. 8.12 Gray v Mather [2016] NSWSC 699 …. 2.9, 4.34 — v Perpetual Trustee Co [1928] AC 399 …. 7.5 Graziani v Graziani (NSW, Eq 2678 of 1985, Cohen J, 20 February 1987, unreported) …. 4.44 Greaves, Re [1954] 1 WLR 760 …. 5.18 Grech v Walsh [2007] NSWSC 302 …. 4.70 Greely v Greely [2011] VSC 416 …. 2.10 Green, Re (1911) 13 GLR 477 …. 4.31, 8.9 Green, Re [1950] NZLR 512 …. 7.11

Green, Re [1951] NZLR 135; [1951] GLR 50 …. 2.42, 2.44, 7.15 Green v Holtom [2006] WASC 1 …. 2.10 — v Robinson (1995) 36 NSWLR 96 …. 3.8 — v Ryterski (1981) 7 Fam LR 834 …. 2.5, 3.7, 10.2 Greene’s Estate, Re (1930) 25 Tas LR 15 …. 2.5, 4.3 Greenfield, Re [1985] 2 NZLR 662 …. 7.3 Greenhalgh, Re [1982] Qd R 99 …. 11.23 Gregory, Re [1971] 1 All ER 497 …. 2.39, 2.40 Gregory v Hudson (No 2) (1997) ACL Rep 395 NSW 34 …. 3.7 Grey v Harrison [1997] 2 VR 359 …. 2.6, 4.34, 4.35, 7.30 Griffiths v Craigie [2014] NSWSC 1339 …. 4.67 Grigoriou v Nitsos [1999] WASCA 42 …. 5.18 Groser v Equity Trustees Ltd (2007) 16 VR 101; [2007] VSC 27 …. 5.13, 5.16 — v — (2008) 19 VR 598; [2008] VSC 598 …. 2.29 Grover v NSW Trustee [2015] NSWSC 1048 …. 4.67 Groves v Groves [2013] NSWSC 623 …. 4.29 Guardian Trust and Executors Co v Public Trustee NZ [1942] AC 115 …. 6.2 Guisande v Rosario [2008] NSWSC 860 …. 4.11 Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151 …. 4.52, 4.65 Gurss v Findley [2004] NSWSC 229 …. 3.7 Guskett, Re [1947] VLR 212 …. 5.10, 5.13 Guthrie, Re (1983) 32 SASR 86 …. 2.15, 3.3, 4.31

H H, Re [1952] QWN 8 …. 3.2, 4.25 Haase, Re (1967) NZLJ 121 …. 4.31 Hackett v Public Trustee for the Australian Capital Territory [1997] ACTSC 30 …. 11.4 Hale, Re [1981] 1 NZLR 705 …. 5.11 Hall, Re (1930) 30 SR (NSW) 165 …. 7.13, 7.15 Hall, Re [1941] QWN 3 …. 3.8, 4.29, 4.31, 10.2, 10.21 Hall, Re (1959) SR (NSW) 219 …. 6.6, 10.17, 10.21 Hallahan, Re (1918) 18 SR (NSW) 138 …. 2.42, 4.29 Halton v Clayton [2005] NSWSC 1269 …. 4.31, 10.6 Hamilton v Moir [2013] NSWSC 1200 …. 4.71 Hampson v Hampson [2010] NSWCA 359 …. 2.41 Hanlon v Evans [2009] NSWSC 137 …. 3.3 Hansen v Hennessey [2014] VSC 20 …. 2.10 — v — [2014] VSC 115 …. 6.2, 10.2 Haque v Haque (No 2) (1965) 114 CLR 98; 39 ALJR 144 …. 7.3 Hardcastle v Perkuhn [1999] NSWSC 860 …. 2.53 Hardgraves, Re [1955] St R Qd 601 …. 2.24, 2.25, 2.36, 2.42 Hardgraves (No 2), Re [1956] St R Qd 153 …. 2.36 Hardiman-Burt v Gordon [2008] NSWSC 395 …. 4.50 Harding, Re [1956] NZLR 506 …. 7.4 Harding, Re [1983] WAR 266 …. 4.22 Hargrave, Re (1994) ACL Rep 395 Qld 4 …. 3.3

Hargrave v Hargrave (1850) 12 Bear 408; 50 ER 1117 …. 7.29 Harkness v Harkness (No 2) [2012] NSWSC 35 …. 10.6 Harrigan, Re [2012] NSWSC 291 …. 2.19 Harris, Re (1918) 18 SR (NSW) 303; 35 WN (NSW) 122 …. 2.2, 2.15, 2.25, 2.43, 4.25, 4.31, 10.2 Harris, Re [1936] SASR 497 …. 4.7 Harris v Bennett (No 1) (2002) 8 VR 411; [2002] VSC 139 …. 2.64, 4.67 — v — (No 3) (2004) 8 VR 425 …. 1.6, 4.67 — v Mills [2009] NSWSC 339 …. 4.23 Harrison, Re [1962] NZLR 6 …. 2.4, 2.5, 2.8 Harrisson v Skinner [2013] NSWSC 786 …. 4.31, 5.12 Hart v Hart (1915) 17 GLR 393 …. 2.2, 4.31, 8.5, 8.16 — v Van Son [2014] NSWSC 585 …. 4.72 Hartnett v Taylor [2014] VSC 427 …. 2.9, 2.10 Haskakis v Hatzopoulos [2015] NSWSC 1408 …. 8.16 Hastings v Hastings [2008] NSWSC 1310 …. 2.42 Hatte, Re [1943] St R Qd 1 …. 2.46, 2.47, 3.3, 4.31, 4.34, 4.35, 7.19 Hawke, Re [1957] NZLR 152 …. 2.29, 2.30 Hawkins v Prestage [1989] 1 WAR 37 …. 2.5, 2.8, 2.25, 4.32, 4.33, 4.34 Hayden v FCT (1996) ACL Rep 405 FC 53 …. 7.18 Hayes v Marquis [2008] NSWCA 10 …. 4.14 Heagerty, Re (1915) 34 NZLR 905; [1916] GLR 64 …. 2.2, 4.3 Heaslop, Re [1948] QWN 10 …. 10.2, 10.20 Heberley, Re [1971] NZLR 325 …. 5.10, 5.17

Hedman v Frazer [2013] NSWSC 1915 …. 5.12, 8.9 Heffernan v Poyser (2000) ACL Rep 395 NSW 18 …. 4.72 Hellwig v Carr [2009] SASC 117 …. 5.14 Henderson v Lees [2014] NSWSC 1948 …. 4.32 Henry v Hancock [2016] NSWSC 71 …. 5.12 — v Northern [2013] NSWSC 1843 …. 2.10, 4.29 Hertzberg v Hertzberg [2003] NSWCA 311 …. 3.7 Heuston v Barber (1990) 19 NSWLR 354 …. 7.3 Higgins v Higgins [2005] Qd R 502; [2005] QSC 110 …. 2.64, 4.32 Higgs v Perpetual Trustees [1943] NZLR 290 …. 4.52, 4.54 Hill, Re (1967) NZLJ 49 …. 5.10 Hill, Re (SC(Qld), Carter J, OS No 1079/87, 17 June 1988, unreported) …. 6.2 Hill v Buckley [2008] NSWSC 1374 …. 4.44 — v Wilson (1984) 114 LSJS 18 …. 2.14, 4.23 Hillman v Box [2010] 5 ACTLR 122; [2010] ACTSC 153 …. 11.3 — v — [2014] ACTSC 107 …. 4.22, 10.2 Hills v Chalk [2008] QCA 159 …. 2.63 Hillyar v Curry [2015] NSWSC 1063 …. 4.71, 8.16 Hinchen v Public Trustee [1978] Tas SR (NC 11) 221 …. 3.2, 4.44 Hinderry v Hinderry [2016] NSWSC 780 …. 2.9, 2.17, 8.2 Hitchcock v Pratt [2010] NSWSC 1508 …. 2.64, 7.3 Hodgson, Re [1955] VLR 481 …. 2.2, 2.3, 2.28, 3.3, 4.25, 4.31, 6.11 Hoffmann v Hoffmann (1909) 29 NZLR 425; 12 GLR 220 …. 5.9, 5.11,

7.9 Hofner, Re [1925] St R Qd 232 …. 4.31 Hogan v Clarke [2002] NSWSC 386 …. 2.10 Hokin, Re [1959] VR 711 …. 2.15, 2.25, 3.3, 4.33, 4.34, 7.30 Holdway v Arcuri Lawyers [2009] 2 Qd R 18; [2008] QCA 218 …. 4.22 — v — (No 2) [2007] QSC 378 …. 4.22 Hollman v Johnson [1775] 98 ER 1120 …. 2.60 Holmes v Permanent Trustee Co (NSW) (1932) 47 CLR 113 …. 2.24 — v Webb (SC(Qld), Davies and Demack JJ, OS No 542/89, 18 August 1992, unreported) …. 5.16 Honeyfield v Rielly [1934] GLR 521 …. 2.25 Hood, Re [1942] VLR 144 …. 8.16 Hooker v Guardian Trust and Executors Co of New Zealand [1927] GLR 536 …. 2.47, 4.23, 7.19 Hoolahan v Scali [2010] NSWSC 1349 …. 3.7 Hooper v Winten [2002] NSWSC 1071 …. 4.69 Hope v Tasmanian Perpetual Trustees Ltd [2006] TASSC 13 …. 4.31 Horkins v Hartey (1874) 6 PR 200 …. 7.29 Horner, Re [1925] St R Qd 232 …. 10.2 Horridge, Re (SC(Qld), Weld M, OS No 112/83, 3 May 1983, unreported) …. 11.22 Horsburgh v White [2006] VSC 300 …. 2.18 Horton, Re [1976] 1 NZLR 251 …. 4.3, 4.67 Horton v Pyne (1994) ACL Rep 395 WA 10 …. 3.3 Horvat v Hocking [2007] NSWSC 212 …. 4.11

Horwitz, Re (1917) 34 WN (NSW) 73 …. 8.16 Horwood v Ah Shay [2014] QDC 199 …. 4.44 House v R (1936) 55 CLR 499 …. 9.3 How v How [2015] TASSC 4 …. 4.32 Howard, Re (1925) 25 SR (NSW) 189 …. 2.47 Howarth v Reed (SC(NSW) Eq Div, Powell J, Nos 4431/88 and 4432/88, 21 March 1991 and 15 April 1991, unreported) …. 4.50 Howe v Lowry [2009] NSWSC 451 …. 2.10, 4.29, 8.16 Hughes, Re [1930] St R Qd 329 …. 3.3 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257 …. 7.11, 7.13, 7.15 — v — (1979) 143 CLR 134; 53 ALJR 249 …. 1.6, 2.3, 2.6, 2.7, 2.12, 2.14, 2.23, 2.25, 3.3, 4.32, 4.33, 4.34, 4.35, 4.44, 7.12, 7.14, 7.15, 10.2, 10.17 Hunter v Hunter (1987) 8 NSWLR 573 …. 2.23, 2.36, 3.3, 3.7, 4.31, 4.32, 4.34, 4.35, 10.17 — v Public Trustee NSW (2000) ACL Rep 395 NSW 15 …. 4.56 — v — [2000] NSWSC 83 …. 4.65 Hurst v Public Trustee (2001) ACL Rep 395 NSW 8 …. 4.72 Hutchinson v Elders Trustee Co (1982) 8 Fam LR 267 …. 2.22, 4.3, 9.3, 10.17 Hutchison, Re [1921] GLR 371 …. 8.5 Hyatt v Covalea [2011] VSC 334 …. 2.19, 4.31, 7.11 Hyland v Burbidge [2000] NSWSC 12 …. 3.7, 4.32 Hynard v Gavros [2014] SASC 42 …. 4.31, 4.49

I

Infant, Re [1981] Qd R 225 …. 4.46 Ingamells v WA Trustees (1993) DFC 95-100 …. 4.24 — v WA Trustees & Randall (SC(WA), White J, No 2671/89, 11 February 1992, unreported) …. 10.4 — v — [2014] WASC 152 …. 10.12 Inostroza v Dura (1996) ACL Rep 395 NSW 48 …. 4.22, 4.52, 4.56, 4.57, 4.65 Ireland, Re (1994) 15 QL Rep 51 …. 3.8 Irvine v Dowling (1994) ACL Rep 395 NSW 30 …. 3.3 Iwasivka v State Trustees Ltd [2005] VSC 323 …. 1.6, 3.2, 4.72 Izard, Re [1954] NZLR 234 …. 2.15, 2.28, 4.25

J J, Re [1947] ALR 496 …. 4.52, 10.19 J, Re (1964) 7 FLR 67 …. 4.27 Jackson, Re [1954] NZLR 175 …. 2.34, 2.39, 2.44 Jackson v Hunger [1919] GLR 69 …. 8.16 — v Newns [2011] VSC 32 …. 2.64 — v Riley (SC(NSW) Eq Div, Cohen J, No 3701/87, 24 February 1989, unreported) …. 3.8 Jagoe v Maguire [2013] NSWSC 1283 …. 3.5, 4.23 James v Day [2004] VSC 290 …. 4.36, 4.44 Jamieson, Re (1967) NZLJ 506 …. 5.9 Jelley v Iliffe [1981] 2 All ER 29; [1981] Fam 128 …. 4.16, 4.67 Jenner, Re [1960] Qd R 349 …. 5.6

Jennery, Re [1967] 1 Ch 280; [1967] 2 WLR 201 …. 8.11, 8.12 Jennings, Re [1940] GLR 546 …. 4.7, 4.25 Jensen v Jensen [2014] VSC 432 …. 2.64 — v Leed (1992) ACL Rep 395 Vic 8 …. 3.3 Jess v Scott (1986) 70 ALR 185 …. 9.2 John, Re [2000] 2 Qd R 322 …. 4.40 John v John [2010] NSWSC 937 …. 5.12 Johns v Public Trustee (1913) 15 GLR 556 …. 7.4 Johnson v Johnson [2014] NSWSC 1682 …. 2.9 — v Wright [2012] NSWSC 879 …. 2.66 Johnston, Re [1947] QWN 29 …. 8.16 Johnston v Johnston (1987) 11 NSWLR 38 …. 4.8, 10.14 Johnstone, Re [1962] Tas SR 356 …. 2.39, 2.40, 4.7 Jolliffe, Re [1929] St R Qd 189 …. 2.10, 4.33, 7.11, 7.15, 8.16, 10.2 Jones, Re (1921) 21 SR (NSW) 693 …. 7.11, 7.12, 7.15 Jones, Re [1978] VR 272 …. 6.2, 7.11, 7.15 Jones v Jones [2012] QSC 342 …. 10.2, 10.8 — v Smith [2016] VSCA 178 …. 2.2 Jordan-Watt v Riordan [2013] NSWSC 1132 …. 2.2, 4.7 Josivovich v Stoikofski [2008] NSWSC 474 …. 4.72 Joslin, Re [1941] Ch 200 …. 2.13, 3.8 Julso, Re [1975] 2 NZLR 536 …. 7.29, 8.8 Just, Re [1938] St R Qd 93 …. 10.18 Jvancich v Kennedy (No 2) [2004] NSWCA 397 …. 10.6

K K, Re [1921] St R Qd 172 …. 2.25, 2.43, 2.44, 4.31, 10.2 Kalmar v Kalmar [2006] NSWSC 437 …. 5.18 Kastrounis v Founderadakis [2012] NSWSC 264 …. 2.51, 4.31, 4.33, 4.34 Katundi v Hay [1940] St R Qd 39 …. 7.27, 7.28, 7.29 Kavalee v Burbidge (1998) 43 NSWLR 422 …. 2.51 Kay v Archbold [2008] NSWSC 254 …. 2.10, 4.30 Keating v Jensen [2014] VSC 433 …. 2.64 Keep v Bourke [2012] NSWCA 64 …. 2.3, 2.10 Keets v Marks [2005] VSC 172 …. 4.36, 4.44 Kelehear v Smith (SC(NSW), Kirby P, Meagher and Handley JJA, No 497/88, 4 October 1990, unreported) …. 3.3 Kelly v Deluchi [2012] NSWSC 841 …. 2.51 — v Kelly [2006] NSWSC 371 …. 7.30 — v — [2007] NSWSC 541 …. 3.3 Kembrey v Cuskelly [2008] NSWSC 262 …. 2.25, 3.8, 6.11 Kemp v Squire (1749) 1 Dick 131; 21 ER 218 …. 7.29 Kennard v Sheehan [2010] NSWSC 882 …. 2.10 Kennedy, Re [1920] VLR 513 …. 2.37, 2.39, 2.40, 4.7, 10.4, 10.11 Ker, Re (SC(Qld), McPherson J, OS No 218/90, 30 October 1990, unreported) …. 7.29 Kerr v Kerr (1991) ACL Rep 395 WA 7 …. 4.32 Kharpoutlian v Manoukian [2009] NSWSC 251 …. 4.29 King v Condon [2009] 2 Qd R 143; [2009] QSC 67 …. 2.29

— v Foster (CA(NSW), No 40372/95, 7 December 1995, unreported) …. 3.8, 4.52 — v White [1992] 2 VR 417 …. 2.5, 2.15, 4.3, 8.16 Kitson v Franks [2001] WASCA 134 …. 2.6 Klease, Re [1972] QWN 44 …. 3.8, 6.6, 6.10, 10.3, 10.8 Kleinig v Neal (1980) 8 Fam LR 392 …. 2.14, 4.32, 4.33, 4.34 — v — (No 2) [1981] 2 NSWLR 532 …. 2.10, 2.14, 4.32, 4.33, 4.34, 7.15 Klemeke v Lustig [2010] VSC 502 …. 4.65 Knight, Re [1939] GLR 673 …. 2.2, 2.40, 4.3, 4.7 Knowles, Re [1995] 2 NZLR 377 …. 7.3 Koehler, Re [1920] NZLR 257 …. 4.52, 10.19 Korvine’s Trusts, Re [1921] 1 Ch 343 …. 2.59 Kowal v Kowal [2008] WASC 27 …. 7.29 Kowalski v Kowalski [2012] QCA 234 …. 2.6 Kozak v Matthews [2007] QCA 296 …. 2.63 Kozlowski v Kozlowski [2013] SASFC 112 …. 2.6, 3.2, 10.17 KQ v HAE [2006] QCA 489 …. 4.17 Krakowszky v Kennedy [2007] NSWSC 842 …. 4.11 Krause v Sinclair [1983] VR 73 …. 4.9, 10.3, 10.14, 10.15, 10.21 Kroehn v Kroehn (1912) 15 CLR 137 …. 10.20 Kulczycki v Public Trustee WA [2013] ACTSC 230 …. 10.2 Kusumo v Kusumo [2014] NSWSC 1704 …. 2.9, 4.33, 4.50

L L, Re [1968] 1 All ER 20 …. 7.29

Lacey v Public Trustee (NT) [2010] NTSC 1 …. 10.7 Lack, Re [1981] Qd R 112 …. 4.9, 10.3, 10.8, 10.15 Ladd v Marshall [1954] 1 WLR 1489 …. 9.4 Lade, Re (1925) 21 Tas LR 13 …. 4.25 Lado Causillas v NSW Trustee & Guardian [2015] NSWSC 1204 …. 2.9, 2.10, 4.7, 4.34 Lago, Re [1984] VR 706 …. 5.17, 10.4, 10.11 Laird v Laird (1903) 5 GLR 466 …. 2.2, 2.22, 2.25, 4.25 Lambeff v Farmers’ Co-op (1991) 56 SASR 323 …. 4.29 Lamond v Public Trustee of Queensland [2009] QSC 247 …. 4.34 Lancaster v Bray [2008] NSWSC 155 …. 4.22 Lanfear, Re (1940) 57 WN (NSW) 181 …. 6.6, 6.8, 10.2 Lang v Australian Executor Trustees Ltd [2013] SASC 171 …. 5.14 Langdale v Danby [1982] 3 All ER 129 …. 9.6 Langford v Cleary [1998] TASSC 37 …. 4.32 Langley, Re [1974] 1 NSWLR 46 …. 7.4 Langtry v Campbell (1991) ACL Rep 395 NSW 15 …. 4.3, 4.11 Large v Higham [No 3] [2010] NSWSC 681 …. 8.13 Larner, Re (1938) 12 ALJ 249 …. 4.23 Lathwell v Lathwell [2007] WASC 83 …. 2.10, 3.3 Lauer, Re [1984] VR 180 …. 5.10, 5.13 Laursen v Laursen [2009] 2 Qd R 148; [2009] QSC 30 …. 4.32, 10.14 Lawford, Re [1954] NZLR 1142 …. 2.17 Lawrence, Re [1973] Qd R 201 …. 4.25, 5.9

Lawrence v Campbell [2007] NSWSC 126 …. 2.10, 4.30 — v Martin [2014] NSWSC 1506 …. 4.22 Lawson, Re [1987] 1 NZLR 486 …. 4.33, 4.34, 4.45 Leach, Re [1985] 2 All ER 754 …. 3.2, 4.44 Lean v Tipping (No 2) [1917] GLR 355 …. 4.29, 4.33, 4.34 Lee v Munro (1928) 98 LJKB 49; 21 BWCC 401 …. 4.67 Leeder v Ellis [1953] AC 52 …. 9.7 Lee-James v Mayer [2006] WASC 224 …. 2.3, 2.10 Leichhardt Municipal Council v Green [2004] NSWCA 341 …. 10.2 Lenehan, Re (1950) 50 SR (NSW) 318 …. 4.23 Leonard, Re [1985] 2 NZLR 88 …. 2.5, 2.21, 3.3, 3.4, 3.5, 3.7, 4.31 Lesiw v Commissioner of Succession Duties (1978) 20 SASR 481 …. 4.18 Leue v Reynolds (1986) 4 NSWLR 590 …. 5.6, 10.14 Lewis v Every [2013] VSC 445 …. 4.72 — v Lewis [2001] NSWSC 321 …. 2.55, 5.12 — v Rogers [2013] VSC 493 …. 10.21 Leyden v McVeigh [2009] VSC 164 …. 2.5, 2.10, 2.25, 4.33, 4.34 Lieberman v Morris (1944) 69 CLR 69 …. 1.2, 2.46, 2.47, 2.63, 3.4 Life v Hall [2016] NSWSC 316 …. 8.9 Lilley v Public Trustee [1978] 2 NZLR 605 …. 5.16 Lillis v Lillis [2010] NSWSC 359 …. 10.6 Ling, Re (1992) ACL Rep 395 Qld 24 …. 2.28 Linning, Re [1995] 1 Qd R 274 …. 10.2, 10.21

Lintern, Re (1982) 98 LSJS 202 …. 3.3, 4.31, 4.67 Lipscomb, Re [1963] NSWR 1509 …. 4.3 Liston, Re [1957] VR 50 …. 2.2, 2.24, 4.25 Liston, Re (SC(Vic), Dean J, 11 November 1958, unreported) …. 4.5 Litchfield v Smith [2010] VSC 466 …. 4.31 Little, Estate of Joan Esme [2015] NSWSC 1913 …. 4.31, 4.65, 10.6 Little, Re (1995) 16 QL Rep 39 …. 2.47, 4.7, 4.31, 5.9, 7.16 Little v Angus [1981] 1 NZLR 126 …. 4.31, 9.3, 10.22 Lloyd v Nelson (1985) 2 NSWLR 291 …. 2.6, 4.34 Lloyd-Williams v Mayfield (2005) 63 NSWLR 1 …. 3.3, 3.4, 4.31 Lo Surdo v Public Trustee [2005] NSWSC 1186 …. 4.32 Lockwood, Re [1960] Tas SR 46 …. 4.44 Lord v Lord [2003] TASSC 99 …. 4.11 Lorking v Lorking [2009] NSWSC 316 …. 4.11 Lovell v Lovell (1950) 81 CLR 513 …. 9.3 Lowe, Re [1964] QWN 37 …. 5.16 Lowe v Lowe [2014] NSWSC 371 …. 2.9, 4.33, 4.34, 8.9 — v — (No 2) [2015] NSWSC 1626 …. 4.11 Lubbe, Re (SC(Qld), Weld M, OS No 53, 18 July 1983, unreported) …. 4.11 Luciano v Rosenblum (1985) 2 NSWLR 65 …. 2.2, 4.3, 4.11, 4.22, 4.24, 10.2 Lumb v McMillan [2007] NSWSC 386 …. 3.7 Luxton v Luxton [1968] VR 540 …. 2.29

M M, Re [1969] NZLJ 50 …. 7.11, 7.15 M (dec’d), Re [1968] P 174 …. 2.47 Maas v O’Neill [2013] WASC 379 …. 4.53, 7.29, 10.9 MacAllister v MacAllister (1944) 2 DLR 399 …. 7.27, 7.29 MacDonald v MacDonald (1935) 35 SR (NSW) 173 …. 7.5 MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318 …. 1.6, 4.25, 4.67 MacGregor, Re [1961] NZLR 1077 …. 4.67 MacGregor v Hunter (1994) DFC 95-150 …. 2.6, 4.22 MacKinnon, Re [2002] TASSC 3 …. 2.28 MacMaster, Re (1957) 10 DLR (2d) 436 …. 2.29 Madden-Smith v Madden [2012] NSWSC 146 …. 5.8 Magson, Re [1983] NZLR 592 …. 5.7, 5.10, 5.11, 5.13, 5.16, 7.28, 9.7 Magur v Brydon [2014] NSWSC 1931 …. 2.9, 2.10, 8.16 Mailes, Re [1908] VLR 269 …. 1.6, 10.2 Main v Main (1949) 78 CLR 636 …. 4.22 Mair v Hastings [2002] NSWSC 522 …. 4.69 Maitland, Re [1954] 1 DLR 657 …. 2.5 Mangraviti v Jackson [1999] NSWSC 804 …. 4.32, 10.6 Manly v Public Trustee of Queensland [2007] QSC 388 …. 4.3 Mann v Starkey [2008] NSWSC 263 …. 7.2 Manning v Matsen [2015] NSWSC 1801 …. 3.8, 6.12 — v — (No 2) [2016] NSWSC 70 …. 3.8, 6.12

Mannix and Nudd v Mannix [2008] NSWSC 1228 …. 4.22, 10.6 Marchi, Re (SC(Qld), OS 22/85, Townsville, Kneipp J, 12 November 1987, unreported) …. 2.10 Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182 …. 4.22 Marshall, Re [1921] NZLR 714 …. 8.5 Marshall v Carruthers [2002] NSWCA 47 …. 4.2, 4.3, 4.22 — v Public Trustee [2006] NSWSC 402 …. 4.44, 4.50, 5.9 — v Redford [2001] NSWSC 915 …. 2.14 Marsh-Johnson v Hillcoat [2008] NSWSC 1337 …. 2.19, 4.72 Marstella, Re [1989] 1 Qd R 638; (1988) 12 Fam LR 787 …. 4.38, 4.40, 10.18 Maslin, Re [1908] VLR 641 …. 10.4, 10.11 Mason v Permanent Trustee Co (1997) ACL 395 NSW 8 …. 2.19, 8.16 Massie v Laundy (SC(NSW) Eq Div, Young J, No 3008/85, 7 February 1986, unreported) …. 4.72 Massingham v Massingham (1996) ACL Rep 395 NSW 36 …. 2.6 Mastaka v Midland Bank [1941] Ch 192 …. 7.3 Matthews, Re (1987) NZ Recent Law 289 …. 6.6, 6.9, 8.8 Matthews v Wear [2011] NSWSC 1145 …. 2.10, 4.45, 4.49 May, Re [1952] GLR 446 …. 3.8, 4.67 May Berry, Estate of [2016] NSWSC 13 …. 2.19 Mayfield v Lloyd-Williams [2004] NSWSC 419 …. 2.2, 3.4, 3.7 — v — [2005] NSWCA 189 …. 3.4, 3.7, 4.31 — v Public Trustee [2009] NSWSC 330 …. 7.2, 10.6 Mayne, Re (1992) ACL Rep 395 Qld 18; (1993) ACL Rep 395 Qld 3 ….

3.3 Mayo, Re [1968] 2 NSWR 709 …. 4.8 McCaffery, Re (1931) 4 DLR 930 …. 2.29, 2.30 McCaffrey, Re (1982) 29 SASR 582 …. 2.2, 2.28, 4.25, 4.31, 4.67, 10.2 McCarthy, Re [1919] NZLR 807 …. 6.9, 7.28 McCarthy v McCarthy [2009] NSWSC 774; [2010] NSWCA 103 …. 3.2, 3.5, 4.44 — v Mitchell [1924] NZLR 847 …. 5.8 — v Murphy [2002] NSWSC 494 …. 4.31 — v Tye [2015] NSWSC 1947 …. 4.72, 10.6 McCleary v Metlik Investments [2015] NSWSC 1043 …. 4.31, 10.6 McColl v McComish (1995) ACL Rep 395 WA 12 …. 2.34 McComish v Sharpe [2002] WASC 96 …. 4.28 McCormick v Gleeson [1934] GLR 158 …. 4.52, 4.65 — v O’Brien [2007] NSWSC 131 …. 4.31, 10.6 McCosker v McCosker (1957) 57 CLR 566 …. 2.2, 2.3, 3.3, 4.33, 4.34, 4.35, 9.3 McCrea v Jones [2003] NSWSC 221; (2003) ACL Rep 395 NSW 29 …. 4.65 McCreedy, Re [1938] St R Qd 293 …. 4.33, 10.2, 10.4, 10.8 McCrory, Re [1925] VLR 298 …. 10.15 McCullum v Permanent Trustee Co [1999] NSWSC 1219 …. 2.14, 8.16 McCusker v Rutter [2010] NSWCA 318 …. 10.6 McDermott, Re [2015] NSWSC 588 …. 3.2, 3.8, 4.44 McDougall v Rogers [2006] NSWSC 484 …. 2.10, 10.6

McElroy, Re [1940] VLR 445 …. 4.23, 4.32 McEvoy v Public Trustee (1989) 16 NSWLR 92 …. 2.29, 2.33, 4.67, 10.15, 10.16 McGarry v McGarry [2009] NSWSC 504 …. 4.29 McGookin, Re [1955] NZLR 511 …. 2.17, 4.52 McGoun, Re [1910] VLR 153; (1910) 16 ALR 141; 31 ALT 193 …. 2.38, 4.7, 7.11, 10.3, 10.4, 10.11, 10.21 McGowan v Hall (1991) ACL Rep 395 WA 8 …. 5.9 — v Waites [2006] NSWSC 465 …. 7.30 McGrath v Eves [2005] NSWSC 1006 …. 4.31 — v Queensland Trustees [1919] St R Qd 169 …. 2.34, 2.36, 2.41, 4.23, 8.9, 10.2 McGregor, Re [1956] St R Qd 596 …. 8.7, 10.21, 10.22 McGregor, Re [1960] NZLR 220 …. 5.9 McInnes, Re [1942] NZLR 547 …. 4.3, 4.23, 7.28 McIntosh v Blatch [2002] NSWSC 403 …. 4.2, 4.22 McIntyre, Re [1993] 2 Qd R 383 …. 3.3, 10.18 McIntyre v McIntyre [2005] NSWSC 1216 …. 2.38 McKenna v Solomon (1995) DFC 95-157 …. 6.11 — v — (1995) DFC 95-172 …. 2.6, 4.22 McKenzie, Re (1951) 41 WN (NSW) 293 …. 4.46 McKenzie v Baddeley (1992) ACL Rep 395 NSW 3 …. 4.43 — v Topp [2004] VSC 90 …. 1.6, 4.36, 4.44 McKinney, Re [1963] NSWR 993 …. 2.40, 4.7 McLean, Re (SC(Qld), Derrington J, OS No 825/85, 23 July 1987,

unreported) …. 4.29 McLeod v Johns [1981] 1 NSWLR 347 …. 2.29, 2.33 — v Radnidge [2009] NSWSC 1105 …. 2.42, 4.71, 7.2 McMahon v McMahon (SC(NSW) Eq Div, Young J, No 4328/85, 2 August 1985, unreported) …. 2.48, 8.8 McNamara, Re (1938) 55 WN NSW 180 …. 4.33, 4.52, 4.65, 8.16 McNaught, Re (1959) NZLJ 257 …. 2.34, 2.41 McPhail, Re [1971] VR 534 …. 5.13, 5.16 McPherson, Re [1987] 2 Qd R 394 …. 2.61, 5.4, 5.16, 10.15 McRitchie, Re (1917) unreported …. 3.8 Mead v Lemon [2015] WASC 71 …. 3.7, 4.29 Meers v Permanent Trustee Co Ltd (2001) ACL Rep 395 NSW 3 …. 4.72 Meier, Re [1976] 1 NZLR 257 …. 7.9 Menaker v Kutylov [2006] NSWSC 374 …. 2.10 Menczer v Menczer [2009] NSWSC 1466 …. 2.10, 2.18, 4.31 Menzies v Marriott [2009] VSC 345 …. 5.9, 5.13 Mercer, Re [1977] 1 NZLR 469 …. 2.34 Michael v Public Trustee [2009] NSWSC 744 …. 7.2 Michel, Re [1939] QWN 49 …. 3.8, 5.10 Michie v Hopcraft (1910) 12 GLR 727 …. 10.20 Mikulic v Public Trustee [2006] NSWSC 256 …. 5.12 Milanovic, Re [1973] Qd R 205 …. 10.4, 10.8, 10.15 Milewski v Holben [2014] NSWSC 388 …. 4.8, 5.12

Milillo v Konnecke (2009) 2 ASTLR 235; [2009] NSWCA 109 …. 2.66, 4.11, 9.3 Miller, Re [1968] 3 All ER 844 …. 5.6 Miller v Ryan [2015] NSWSC 1713 …. 4.72 — v Warren [2009] WASC 115 …. 2.10, 4.31 Mills v State Trustees Ltd [2012] VSC 614 …. 2.64 Milne, Re [1917] NZLR 687 …. 5.10 Mitchell, Re (1941) 42 SR (NSW) 19 …. 6.8 Mitchell v Hamilton [2005] NSWSC 1097 …. 10.21 Mitrovic v Perpetual Trustee Co [1999] NSWSC 900 …. 4.50, 4.72 Molloy, Re (1928) 28 SR (NSW) 546 …. 8.7 Monaco v Keegan [2006] NSWSC 825 …. 2.10 Monckton, Re [1996] 2 Qd R 174 …. 4.38, 4.40 Monshing, Re [2003] VSC 498 …. 3.3 Moody, Re [1992] 2 All ER 524 …. 4.23 Moon v Abrahams [2010] NSWSC 69 …. 3.8, 8.16 Moore v Foodey [2006] NSWSC 764 …. 2.58, 4.44 — v Moore (CA(NSW), Hutley JA, CA154 of 1983, ED2873 of 1982, 16 May 1984, unreported) …. 4.3 Moorhouse, Re [1945] QWN 10 …. 4.7 Morgan v Public Trustee (1999) ACL Rep 395 NSW 73 …. 4.72 Morris v Smoel [2014] VSC 32 …. 2.10 Morse v Morse (No 2) [2003] TASSC 145 …. 10.6, 10.9, 10.10 Mortimer v Lusink [2016] QSC 119 …. 5.10

Morton v Mangan [2014] NSWSC 1731 …. 2.9, 4.29 Moussa v Moussa [2006] NSWSC 352 …. 4.25 — v — [2006] NSWSC 509 …. 10.6 Mudford v Mudford [1947] NZLR 837 …. 2.15, 4.33, 4.34, 8.8 Mulcahy v Weldon [2001] NSWSC 474 …. 2.48, 4.8 — v — [2002] NSWCA 206 …. 4.8 Munt v Findlay (1905) 8 GLR 197 …. 4.32, 4.33, 4.34 Murphy v Public Trustee [1921] GLR 152 …. 8.5 — v Stewart [2004] NSWSC 569 …. 2.37, 2.42 Murray v Kirkpatrick (1940) 57 WN (NSW) 162 …. 7.32, 10.22 — v Sitwell [1901] WN 119 …. 7.29 Musgrave, Re (SC(Qld), Weld M, OS No 651/83, 26 October 1984, unreported) …. 4.54, 4.61, 4.65

N Naffin, Re [1941] SASR 294 …. 4.7 Nagy v Marton [2014] NSWSC 540 …. 4.22 Nassim, Re [1984] VR 51 …. 5.13, 7.3 Neagle, Re (1957) 33 NZLJ 280 …. 2.34 Neale v Neale [2015] NSWCA 206 …. 4.2, 4.11 Neil v Jacovou [2011] NSWSC 87 …. 2.48, 2.63, 3.7, 4.3 Nelepkopwicz v Permanent Trustee Co [2003] NSWSC 362 …. 4.65 Nelligan v Crouch [2007] NSWSC 840 …. 4.72 Nelson, Re [1961] QWN 7 …. 5.9 Nenke v Nunn [1967] WAR 79 …. 4.29, 5.13

Nesbit, Re (Qld Dist Ct, Wilson DCJ, D829/2001, 19 August 2003, unreported) …. 4.22 Netter v Watts [2008] NSWSC 1102 …. 4.30 Newell, Re (1932) 49 WN (NSW) 181 …. 4.3, 6.6, 6.7, 6.10, 10.2, 10.21 Newman v Newman [1927] NZLR 418 …. 4.4, 5.10 — v — [2015] NSWSC 1207 …. 4.34 Newnham v Tarbert (1991) DFC 95-101 …. 2.6, 4.22 Newton, Re (1950) 76 WN (NSW) 479 …. 5.10 Nicholas v Nicholas [2013] NSWSC 697 …. 2.5, 4.67 Nicholls v Hall [2007] NSWCA 356 …. 2.28, 4.34 — v Zis [2001] WASC 301 …. 4.11 Niech v Bowd (1981) 7 Fam LR 102 …. 4.11, 10.2 Niehoff v Niehoff [1995] 2 VR 356 …. 4.32 Nielsen, Re [1968] Qd R 221 …. 4.37, 4.45, 10.3, 10.14, 10.21 Nobile v Scragg [2011] SASC 182 …. 5.6 Norris, Re [1953] Tas SR 32 …. 2.5, 8.16 Norris v Public Trustee NSW [2008] NSWSC 179 …. 4.32 Nosworthy v Nosworthy (1906) 9 GLR 303; 26 NZLR 285 …. 4.23, 8.16 Nudd v Mannix [2009] NSWCA 327 …. 4.22 Nugent-Head v Jacob (Inspector of Taxes) [1948] AC 321 …. 4.22

O O, Re [1975] 1 NZLR 444 …. 4.47, 4.48 Oakes v Oakes [2014] NSWSC 1312 …. 4.72

Oakley, Re [1986] 2 Qd R 269 …. 4.37, 10.15 O’Brien v McCormick [2005] NSWSC 619 …. 6.8 O’Connor, Re [1931] QWN 39 …. 4.7, 5.9, 8.16 O’Donnell v Gillespie [2010] QSC 22 …. 2.10, 3.3, 3.7, 4.33 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 …. 2.33, 8.11, 8.13, 8.20 Ogden v Green [2003] NSWCA 352 …. 3.7, 4.31 O’Loughlin v O’Loughlin [2003] NSWCA 99 …. 4.11 Olson, Re [1944] NZLR 778 …. 8.11, 8.13 O’Neill, Re (1917) 34 WN (NSW) 72 …. 4.7 Ormsby v Ormsby (1991) ACL Rep 395 NSW 13 …. 2.51, 4.33 Orr, Re [1930] GLR 227 …. 8.7 Osborne, Re [1928] St R Qd 129 …. 4.31, 7.3 O’Shaughnessy v Mantle (1986) 7 NSWLR 142 …. 7.16 O’Shea v O’Donnell [1929] GLR 519 …. 5.9 Ostrander Estate, Re (1915) 8 WWR 367 …. 7.3 Oswell v Jones [2007] QSC 384 …. 4.52, 4.53, 4.65 Oxley v Oxley [2014] NSWSC 1606 …. 2.48

P P, Re [1973] 2 NZLR 734 …. 4.52, 4.65 P v T (1980) 23 SASR 289 …. 4.27 Packer v Dorrington [1941] GLR 337 …. 2.38 Packo v Packo (1989) 17 NSWLR 316 …. 5.16, 6.2 Page v Page [2016] NSWSC 1218 …. 4.43

Pain v Holt (1919) 19 SR (NSW) 105 …. 7.3 Palmer v Bank of New South Wales [1973] 2 NSWLR 244 …. 7.5, 7.7 — v Dolman [2005] NSWCA 361 …. 2.10 Pandelakis v Chintis [2007] NSWSC 1023 …. 4.51, 7.2 Pang v Fong [2014] NSWSC 1425 …. 2.9, 4.33 Panozzo v Worland [2009] VSC 206 …. 4.11 Parente v Parente (1982) 29 SASR 310 …. 2.14, 4.68, 10.2 Parish v Parish [1924] NZLR 307 …. 2.46, 2.47, 4.3, 4.11 — v Valentine [1916] NZLR 455; [1916] GLR 367 …. 2.2, 4.31, 8.5, 8.16 Park, Re (1972) 66 QJP 25 …. 5.6 Parker v Australian Executor Trustees Ltd [2016] SASC 64 …. 2.10 — v Carr (1905) 24 NZLR 895 …. 8.14 — v Public Trustee NSW (SC(NSW) Eq Div, Young J, No 4567/87, 31 May 1988, unreported) …. 2.17 Parr, Re (1929) 30 SR (NSW) 10 …. 2.39, 4.7 Parr, Re [1936] GLR 283 …. 8.7 Parry, Re (1991) ACL Rep 395 Qld 11 …. 5.16 Pata v Vumbuca [2002] NSWSC 167 …. 2.14, 4.72 Patrick, Re (1936) 36 SR (NSW) 156 …. 2.47 Paulin, Re [1950] VLR 462 …. 2.15, 4.3, 7.3, 7.13, 8.16, 11.34 Pavey v Statham [2001] NSWSC 365 …. 4.65 Paxton v Nicholson [1918] GLR 393 …. 2.40, 4.7, 7.32, 10.22 Pead v Perpetual Trustees WA Ltd (1999) ACL Rep WA 4 …. 4.67 Pearce, Re [1936] GLR 324 …. 4.11, 8.16

Pearson, Re [1936] VLR 355 …. 2.47 Pearson v Jones [2000] NSWSC 799 …. 4.67 Peebles v Oswaldtwistle Urban District Council [1896] 2 QB 159; (1896) 65 LJQB 499 …. 2.29 Pelissier v Melville [2006] NTSC 93 …. 2.10, 8.16 Penfold v Perpetual Trustee [2002] NSWSC 648 …. 2.58 Pengilley v Public Trustee (SC(NSW) Eq Div, Young J, No 3824/84, 9 October 1985, unreported) …. 2.36 Pentland, Re [1972] Tas SR (NC 27) 278 …. 8.8 Penty v Mott (1984) 6 DLR (4th) 444 …. 4.52, 4.65, 7.10 Perger v Public Trustee WA (1997) ACL Rep 395 WA 5 …. 4.22 Perkins, Re [1958] SR (NSW) 1 …. 7.3 Perkins v Perkins (1999) ACL Rep 395 NSW 29 …. 7.15 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 …. 2.6, 4.3, 7.11, 10.18 Perry, Re [1953] NZLR 530; [1953] GLR 214 …. 2.61, 5.16 Peters v Belgrave (1995) ACL Rep 395 NSW 2 …. 4.29 — v Salmon [No 2] [2013] NSWSC 1071 …. 8.13 Petrohilos v Hunter (1991) 25 NSWLR 343 …. 4.43, 4.69 Petrucci v Fields [2004] VSC 425 …. 4.67, 4.72 Pevsner, Re (1983) 68 FLR 254 …. 8.20 Pfitzner v Sergeant [1941] SASR 286 …. 7.29 Pfrimmer, Re (1968) 69 DLR (2d) 71 …. 4.51 Phillips, Re (1901) 4 GLR 192 …. 2.25 Phillips, Re (1929) 29 SR (NSW) 19 …. 4.7

Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 …. 2.51, 9.3 — v — (No 2) [2014] NSWCA 135 …. 10.17 Picone v Kirkby [2002] NSWSC 1233 …. 3.7, 4.22 Piercy v Connellan [2001] NSWSC 1115 …. 4.25 Piggott v Harrex [2000] TASSC 72 …. 4.28 Pilton v Pilton [2008] WASC 303 …. 5.15, 5.18 Pink v Sharwood and Co [1913] 2 Ch 286 …. 7.28 Piper, Re (1960) 60 SR (NSW) 328 …. 8.2 Piras v Egan [2006] NSWSC 328 …. 4.24, 10.6 — v — [2008] NSWCA 59 …. 4.14 Pitkin v Henderson (2001) ACL Rep 395 NSW 30 …. 4.72 Pitman v Chant [2005] QSC 038 …. 5.12 Pizzino v Pizzino [2010] QSC 35 …. 4.50 Plaska v Coffey [2014] NSWSC 1930 …. 2.9, 10.6 Platt, Re [1952] QWN 3 …. 10.3 Plimmer v Plimmer (1906) 9 GLR 10 …. 4.7, 8.14 Poesch v Grosvero [2013] VSC 596 …. 2.33 Pogorelic v Banovich [2007] WASC 45 …. 4.11 Pointer, Re [1946] Ch 324 …. 8.12 Poletti v Jones [2015] NSWCA 107 …. 2.3, 2.10 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; 36 ALJR 1 …. 1.6, 2.2, 2.10, 2.14, 2.22, 3.4, 4.32, 7.15, 10.18 Poole v Barrow [2014] VSC 576 …. 3.2 Pope, Re (1975) 11 SASR 571 …. 2.17, 4.3, 6.71, 10.2

Pope v Christie (1998) ACL Rep 395 NSW 22 …. 4.31 Popescu v Borun [2011] NSWSC 1532 …. 4.14 Popple v Rowe [1998] 1 VR 651 …. 4.42 Porteous, Re [1949] VLR 383 …. 8.2, 8.7, 8.17 Porthouse v Bridge [2007] NSWSC 686 …. 2.58, 4.44 Postle, Re (SC(Qld), Andrews J, OS No 796/81, 4 December 1981, unreported) …. 5.16 Powell, Re [1949] GLR 132 …. 8.16 Powell v Monteath [2006] 2 Qd R 473 …. 4.44 Prakash, Re [1981] Qd R 189 …. 4.9, 5.11, 5.18, 10.15 Pratt, Re (1963) 80 WN (NSW) 1416; [1964] NSWR 105 …. 4.46 Presland v Carroll [2010] NSWSC 21 …. 4.65 Price v Roberts (1990) ACL Rep 395 NSW 9 …. 2.42 Priest, Re [1916] NZLR 710; [1916] GLR 313 …. 4.31 Prince v Argue [2002] NSWSC 1217 …. 2.51 Pringle, Re [1956] CLY 9248 …. 4.52, 4.65 Pritchett v Priakos [2006] NSWSC 271 …. 4.23 Propsting, Re [1955] QWN 18 …. 6.11 Prosser v Twiss [1970] VR 225 …. 4.29 Prufert, Re (1991) ACL Rep 395 Qld 14 …. 5.16 Public Trustee v Brown (1915) 34 NZLR 951; 17 GLR 708 …. 3.3, 4.25, 7.28 — v Waterhouse (CA(NSW), Reynolds, Hutley and Mahoney JJA, No 178/82, 30 September 1982, unreported) …. 4.32 — v Willis [1924] GLR 238 …. 4.52, 10.19

Puckridge, Re (1978) 20 SASR 72 …. 3.7, 4.67 Puie v Public Trustee of Qld (1986) Q Conv Law and Practice 54215 …. 4.22, 4.24 Pulver, Re (1982) 139 DLR (3d) 638 …. 7.3 Purnell, Re [1961] QWN 34 …. 5.6 Purnell v Moon (1991) 22 NSWLR 499 …. 7.11

R R v Creamer [1919] 1 KB 564 …. 4.22 Raineri, Re (1991) 14 QL Rep 82 …. 4.34, 4.35, 10.2 Rainoldi v Rainoldi [2015] WASC 487 …. 5.15 Ralphs, Re [1968] 1 WLR 1522 …. 6.5 Ralphs v Shirt [2002] NSWSC 626 …. 4.22 Randall v Public Trustee [2000] NSWSC 500 …. 3.8 Raos, Re (1969) NZLJ 51 …. 9.3 Rattenbury, Re [1936] 2 WWR 554 …. 7.3 Ray v Greenwell [2009] NSWSC 952 …. 4.31, 7.15 — v — [2009] NSWSC 1197 …. 10.4, 10.6 — v Moncrieff [1917] NZLR 234; [1917] GLR 72 …. 2.36, 4.35 Raybould, Re [1961] QWN 47 …. 9.9, 10.21 Raybould, Re [1963] Qd R 188 …. 2.25, 7.11, 7.12, 7.13, 7.15 Raymond, Re (1912) 14 GLR 560 …. 4.29, 4.34 Rayner v Rayner [2006] NSWSC 335 …. 4.11 RB, a protected estate family settlement, Re [2015] NSWSC 70 …. 2.48

Read, Re [1910] VLR 68 …. 2.28, 10.2 Read v Nicholls [2004] VSC 66 …. 2.29 — v Read [1944] SASR 26 …. 7.31 Reddie v Cornock [2005] NSWSC 187 …. 10.4, 10.6 Reece v Warland (1999) ACL Rep 395 NSW 68 …. 4.56, 4.65 Reeve, Re [1968] NZLJ 145 …. 2.5 Reeves v Berge Phillips (1982) 7 Fam LR 940 …. 4.45, 10.2, 10.21 Revell v Revell [2016] NSWSC 947 …. 2.26, 4.37, 10.6 Rhodes v Pounsberry [2003] NSWSC 636 …. 2.10 — v Swithenbank (1889) 22 QBD 577 …. 7.28 Richard v AXA Trustees Ltd (2000) ACL Rep 395 Vic 17 …. 4.56, 4.61, 4.65 Richards v Person [1982] 2 WWR 668 …. 4.23 — v — [1984] 1 WWR 573 …. 4.23 Richardson, Re (1920) SALR 24 …. 2.2, 2.15, 2.25, 4.3, 4.11, 10.4 Richardson v Armistead [2000] VSC 551 …. 4.12, 4.24 — v Rearden [2006] NSWSC 1252 …. 2.52 Richardson’s Estate, Re (1935) 29 Tas LR 149 …. 7.5, 7.6 Riches v Holdman [2001] WASC 21 …. 2.10 Ridge v Public Trustee [2006] NSWSC 400 …. 4.52 Riley, Re [1996] 1 Qd R 209 …. 4.28 Robbins v Hume [2015] VSC 128 …. 2.61, 6.4 Roberts, Re [1919] VLR 125 …. 2.40, 4.7, 7.11, 10.4, 10.11 Roberts v Moses [2015] NSWSC 1504 …. 8.2

— v Roberts (1992) 9 WAR 549 …. 3.3, 3.8 — v Western Australian TE&A Co Ltd (1914) 17 WALR 27 …. 2.18 Robertson v Koska [2010] VSC 143 …. 4.36, 4.44 Rodgers v Rodgers (1993) DFC 95-146 …. 2.3, 4.34 — v Tasmanian Perpetual Trustees Ltd [2013] TASSC 73 …. 4.29, 4.50 Roper, Re [1927] NZLR 731 …. 7.3 Rose v Rose [1922] NZLR 809 …. 3.3 Ross v Public Trustee (NT) (SC(NT), Angel J, Nos 9/95, 74/95, 16 May 1996, unreported) …. 2.18, 4.29, 4.31 Rough, Re [1976] 1 NZLR 604 …. 5.8, 5.10 Rowe, Re [1964] QWN 46 …. 2.14, 4.32, 4.33, 4.34 Rowe v Lewis (1907) 26 NZLR 769 …. 2.28, 4.31, 8.16 Rowell v Calder [2007] WASC 144 …. 7.29 Rowley v Bouwmeester [2005] TASSC 34 …. 2.10, 3.7 Rush, Re (1901) 20 NZLR 249 …. 2.6, 4.3 Russell, Re (1907) 9 GLR 509 …. 4.3 Russell, Re [1970] QWN 22 …. 3.2 Russell v Quinton (2000) ACL Rep 395 NSW 28; [2000] NSWSC 322 …. 2.48, 3.7, 4.22, 7.19 Russoniello v Russoniello [2006] NSWSC 557 …. 4.44 Rutter v McCusker [2008] NSWSC 269 …. 4.30, 4.32, 7.2 — v — (No 2) [2009] NSWSC 71 …. 10.3, 10.6, 10.14 Ruxton, Re [1946] VLR 334 …. 2.38, 2.40, 2.44

S

S, Re [1975] VR 47 …. 2.34, 2.43, 4.45, 4.49, 7.30 S v M (1984) 36 SASR 316 …. 4.27 Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 …. 2.5, 2.21, 4.12, 4.22, 4.24 — v — [2016] NSWCA 62 …. 4.12, 4.24 Sadler v Public Trustee [2009] NZCA 364 …. 6.4 Sagovac v Public Trustee (1986) 132 LSJS 227 …. 4.18 Salathiel, Re [1971] QWN 18 …. 4.31, 10.17 Sale v Rudys [2002] 2 Qd R 423 …. 4.16 Salloum v Assouni [2013] VSC 591 …. 2.21 Salmon, Re [1981] Ch 167; [1980] 3 All ER 532 …. 5.4, 5.7, 5.9, 5.18 Salmon v Osmond [2015] NSWCA 42 …. 2.3, 3.3, 10.3, 10.17 Sammut v Kleemann [2012] NSWSC 1030 …. 2.17 Sampson v Sampson (1945) 70 CLR 576 …. 9.3, 10.18 Samsely v Barnes (1991) DFC 95-100 …. 4.3, 4.24 Sanders v Valtas [1999] NSWSC 1216 …. 2.14 Sangster v Sangster [2009] NSWSC 695 …. 4.50 Sarich v Erceg [1984] WAR 11 …. 4.9 Saskor v Farmers’ Co-operative Executors and Trustees (1983) 109 LSJS 117 …. 4.8, 4.29 Sasso v Sissini [2009] NSWSC 35 …. 4.11 Sassoon v Rose [2013] NSWCA 220 …. 2.58 Saunders v Minister of Stamp Duties [1923] GLR 344; [1924] NZLR 161 …. 7.19 Savage v Ferguson [2014] NSWSC 703 …. 4.34

Savvaki v Papargyriou [2008] NSWSC 830 …. 4.22 Saxon, Re (1975) 12 SASR 110 …. 2.15, 4.3 Sayer v Public Trustee NSW [2009] NSWSC 89 …. 4.11, 8.9 Scalone v Scalone [2000] NSWSC 1028 …. 2.18, 4.32, 7.30, 10.6 Schaefer v Schuhmann [1972] AC 572; (1972) 46 ALJR 82 …. 1.3, 7.5, 7.6, 7.7, 7.8, 8.16 Schaeffer v Schaeffer (1994) 36 NSWLR 315 …. 2.51 Scherbakova v Stapleton [2001] NSWSC 213 …. 4.72 Schetzer v Trathen (2007) 16 VR 318; [2007] VSC 161 …. 4.62, 4.65, 8.8 Schmidt v Watkins [2002] VSC 273 …. 1.6 Schroeder, Re [1972] QWN 10 …. 4.23 Schwerdt, Re [1939] SASR 333 …. 3.3, 8.7 Scott, Re [1950] VLR 102 …. 2.38, 2.40, 2.44, 4.3, 4.7, 7.11, 7.13, 7.15, 10.2, 10.21 Scott v Comptroller of Stamps [1967] VR 122 …. 7.19 Sedgwick v Varzonek [2015] NSWSC 1275 …. 4.24 Seery, Re [1969] 2 NSWR 290; (1969) 90 WN (Pt 1) (NSW) 400 …. 7.5, 7.6, 8.16 Seeto v Seeto [2013] NSWSC 1232 …. 4.33, 4.34, 5.12 Sellar, Re (1925) 25 SR (NSW) 540 …. 7.3 Sellars v Maeyke [2005] QSC 368 …. 2.3 Sellers v Scrivener [2010] VSC 320 …. 4.22 Semmler v Todd [2015] VSC 567 …. 2.5, 8.16 Serle v Walsh [2006] QSC 377 …. 4.3 Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 …. 2.17, 2.22, 2.49,

4.3, 8.16 Shakespeare v Flynn [2014] NSWSC 605 …. 4.65 Shanahan, Re [1957] NZLR 602 …. 2.28, 3.3, 4.25 Shannon, Re (1935) 35 SR (NSW) 516 …. 2.29, 10.3, 10.16 Shannon v Baker (1993) 9 WAR 325 …. 4.5 — v Public Trustee [1970] VR 876 …. 5.9, 5.10, 5.11 Sharp, Re [1923] St R Qd 102 …. 3.8, 6.8, 10.3, 10.8, 10.21 Sharp v Sharp [2009] NSWSC 841 …. 4.65 Sharpe, Re [1928] St R Qd 102 …. 4.31 Shearer v Public Trustee [1998] NSWSC 1007 …. 2.10, 4.31 — v — (SC(NSW), Young J, 21 April 1998, unreported) …. 10.6 Sheehan v Public Trustee [1930] NZLR 1 …. 5.10, 5.16 Shekleton-Barden v Hogan (SC(NSW) Eq Div, McLelland J, No 2407/84 17 September 1985, unreported) …. 4.23 Shelley, Re [1937] NZLR 342 …. 8.2, 8.7 Shepherd v Preen [1918] GLR 60 …. 8.16 Sherborne Estate, Re [2005] NSWSC 593 …. 4.67 Sherborne Estate (No 2), Re; Vanvalen v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003 …. 10.6, 10.8 Short, Re [1954] NZLR 1149 …. 2.15, 2.28 Shrimpton, Re [1962] NZLR 1000 …. 2.29, 2.30, 4.3, 4.25, 4.67, 10.16 Sikorski v Michalowski [2007] NSWSC 666 …. 2.10, 5.12 Simonetto & Simonetto v Dick (No 2) [2014] NTSC 6 …. 10.7 Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 …. 4.22, 4.23, 4.24

Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 …. 3.7 Simpson-Cook v Delaforce [2009] NSWSC 357 …. 4.8 Simson, Re [1950] Ch 38; [1949] 2 All ER 826 …. 6.2, 6.5, 6.11 Sinclair v Sinclair [1917] NZLR 144 …. 2.22, 3.3, 4.31, 4.33, 4.34, 4.35 Singer v Berghouse (1993) 114 ALR 521; 67 ALJR 708; [1993] HCA 35 …. 9.10, 10.3, 10.6, 10.8, 10.9 — v — (1994) 181 CLR 201; 68 ALJR 653; 18 Fam LR 94 …. 1.6, 2.3, 2.6, 2.63, 4.3, 4.44, 9.3 — v United Israel Appeal Refugee Relief Fund [2013] NSWSC 1935 …. 2.49 Sinnott, Re [1948] VLR 279 …. 1.6, 4.3, 4.25, 4.29, 4.32, 8.10 Sinodinos, Re (1994) 63 SASR 42 …. 4.27 Sitch (No 2), Re [2005] VSC 383 …. 10.6, 10.9, 10.11, 10.14 Skarica v Toska [2014] NSWSC 34 …. 4.70 Skorupa v Public Trustee (1997) ACL Rep 395 NSW 19 …. 4.22 Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 …. 2.21 Slattery, Re (SC(NT), No 809/89, unreported) …. 5.13 Small, Re [1942] SASR 183 …. 4.31 Smallwood, Re [1951] 1 All ER 372; [1951] Ch 369 …. 7.15 Smilek v Public Trustee [2008] NSWCA 190 …. 2.2, 3.2 Smith, Re [1927] NZLR 342 …. 5.10 Smith, Re [1928] SASR 30 …. 4.7, 7.11, 7.15 Smith v Jones [2015] VSC 398 …. 4.31, 4.67 — v Public Trustee [2009] NSWSC 268 …. 2.10, 8.16 — v Smith (1986) 161 CLR 217; 66 ALR 1 …. 2.47, 2.63

— v Taylor [2006] NSWSC 162 …. 4.31 Snow v Snow [2015] NSWSC 90 …. 2.64 Sollitt v Fairhead [1924] GLR 533 …. 5.10 Somogy v Kune [1999] NSWSC 1168 …. 4.72 Spelman v Spelman [1920] NZLR 202; [1920] GLR 264 …. 7.28 Spence, Re [1929] QWN 15 …. 4.25, 7.28 Spencer v Spencer (1992) ACL Rep 395 Vic 18 …. 4.57, 4.65 Spies v Baker [1970] 3 NSWR 39 …. 3.8, 5.10 Sprowles v Bertoldo [2007] NSWSC 1255 …. 2.10, 4.29, 4.31 Stanfield, Re (1961) 37 NZLJ 19 …. 2.25 Stares v Public Trustee [2005] NSWSC 37 …. 4.50 State Trustees Ltd v Bedford [2012] VSCA 274 …. 4.22, 4.25, 4.72 Stern v Engel [2001] NSWSC 1025 …. 4.32, 10.6 — v Sekers [2010] NSWSC 59 …. 2.62, 4.65 Stevens v Reiner [2004] NSWCA 246 …. 3.7, 4.23 Stewart, Re [1948] QWN 11 …. 7.3 Stewart, Re (SC(Qld), Williams J, OS No 624/88, 7 November 1988, unreported) …. 4.9 Stewart, Re [2004] 1 NZLR 354 …. 5.9 Stewart v Antoniolli [2006] NSWSC 389 …. 4.31, 4.72 — v Stewart [2015] QSC 238 …. 4.34 Stojanovski v Stojanovski [2013] NSWSC 1491 …. 2.65 Stokes v Collins & Lewis [2014] WASC 182 …. 4.30 Stollery v Stollery [2016] NSWSC 54 …. 7.2

Stone v Stone [2008] NSWSC 1134 …. 4.34 — v — [2016] NSWSC 605 …. 2.21, 4.29, 5.7, 5.12, 10.2 Stott v Cook (1960) 33 ALJR 447 …. 2.3, 4.32, 4.34, 4.35, 7.10 Strain v Walsh [2011] QDC 165 …. 2.29 Strojczyk v Kopycinzki [2006] NSWSC 589 …. 4.23 Strom, Re [1966] 1 NSWR 592 …. 8.17 Subusa v State Trustees Ltd [2007] VSC 399 …. 4.67 Sugden v Sugden [1957] P 120; [1957] 1 All ER 300 …. 2.29 Summers v Garland [2006] QSC 85 …. 4.22 Sung v Malaxos [2015] NSWSC 186 …. 4.14 — v — (No 2) [2015] NSWSC 290 …. 4.14 Supreme Court Registrar, Equity Division v McPherson [1980] 1 NSWLR 688 …. 6.3 Sutton, Re [1980] 2 NZLR 50 …. 2.13 Swainston v Muni [1999] WASC 201 …. 5.7, 5.15 Swanson, Re [1976] 2 NZLR 27 …. 4.45 Sylvester, Re [1941] Ch 87 …. 4.23 Symmons, Re [1948] 2 ALR 283 …. 4.52 Szilveszterne v Angus (1997) ACL Rep 395 WA 13 …. 2.17 Szlazko v Travini [2004] NSWSC 610 …. 3.8, 4.3, 4.22, 6.6

T Ta v Ta [2007] NSWSC 773 …. 4.11 Tapp, Re (SC(Qld), Campbell J, OS No 26/70, 15 March 1972, unreported) …. 4.65

Tapp v Public Trustee [2009] TASSC 54 …. 4.23 — v — [2009] TASSC 62 …. 10.2 Tauz v Elton [1974] 2 NSWLR 163 …. 7.11 Taylor, Re [1968] Qd R 385 …. 4.30, 7.13, 7.15 Taylor, Re [1989] 1 Qd R 205 …. 4.38 Taylor v Farrugia [2009] NSWSC 801 …. 4.31, 4.52, 5.12, 7.3 Tchadovitch v Tchadovitch [2009] NSWSC 1398 …. 4.3 — v — [2009] NSWSC 1481 …. 4.3, 10.2 — v — (2010) 79 NSWLR 491; [2010] NSWCA 316 …. 2.62, 4.3, 6.6, 10.2 Terlier, Re [1959] QWN 5 …. 5.9, 5.10, 5.12 Terry, In the Estate of (1980) 25 SASR 500 …. 3.2, 4.68 Terry, Re [1951] GLR 18 …. 7.3 Testator’s Family Maintenance Acts, Re (1916) 12 Tas LR 11 …. 2.25, 4.32, 10.4, 10.10 Tham v Public Trustee (WA) [2016] WASC 170 …. 4.11 Theaker, Re [1955] QWN 51 …. 2.28, 2.43, 4.45, 4.49, 8.16 Thirkell v Cox [2010] NSWSC 99 …. 4.44 Thomas, Re [1954] NZLR 302 …. 4.3, 4.23, 7.28 Thomas v Pickering [2011] NSWSC 572 …. 2.66, 4.22 — v Thomas (1843) 7 Beav 47; 49 ER 980 …. 7.29 Thompson v Kelsey (SC(NSW), Young J, No 1783/85, 14 April 1986, unreported) …. 10.4 — v MacDonald [2013] VSC 150 …. 3.3, 4.72 — v — [2015] VSC 93 …. 8.15

— v Mulligan [2009] NSWSC 399 …. 4.31 — v Thompson [2015] VSC 706 …. 4.11 Thorne v Public Trustee (TAS) [2015] TASSC 56 …. 3.8 Thornley v Palmer [1969] 3 All ER 31; [1969] 1 WLR 1037 …. 9.3 Thurlow v Thurlow [2015] NSWSC 1323 …. 2.64 Tiedeman v Tilse [2009] NSWSC 234 …. 2.10, 10.6 TM, Re [1929] QWN 2 …. 2.38 Todd (No 2), In the Marriage of (1976) 25 FLR 260; 9 ALR 401 …. 4.16 Toner v Lister [1919] GLR 498 …. 2.40, 4.7, 8.5, 8.16 Torney v Shalders [2009] VSC 268 …. 3.3 Toth v Graham [2014] NSWSC 393 …. 2.9, 8.9, 10.6 Trackson, Re [1967] Qd R 124 …. 4.37, 4.44 Traeger, Re [1948] SASR 248 …. 5.11, 5.18 Trapani v Ciocca [2013] VSC 462 …. 4.56 Triplett v Public Trustee [2009] WASC 64 …. 5.15 Troja v Troja (1994) 35 NSWLR 182 …. 2.37 Trumbull-Ward v Michell and Haley [2012] TASSC 67 …. 2.8, 4.31 Tsivinski v Tsivinski (1992) ACL Rep 395 NSW 4 …. 4.67 Tulk v Tulk [1907] VLR 64 …. 4.16 Turkington, Re [1937] 4 All ER 501 …. 5.17 Turnbull, Re [1975] 2 NSWLR 360 …. 4.26 Turner, Re [1943] St R Qd 27 …. 2.2, 4.29 Turner v Riviere [1999] NSWSC 1266 …. 7.30 Turnley v Swaab [1999] NSWSC 594 …. 4.24

Tweedy v Bradley [2000] NSWSC 1134 …. 4.22 Tyson, Re (1907) 7 SR (NSW) 91 …. 7.32

U Underwood v Caulfield [2005] NSWSC 1164 …. 4.68 — v Gaudron [2014] NSWSC 1055 …. 2.9, 2.10, 5.1, 5.12, 10.6 — v — [2015] NSWCA 269 …. 9.3, 10.6 — v Sheppard [2010] QCA 76 …. 6.12 — v Underwood [2009] QSC 107 …. 2.29, 10.2, 10.8 Unger v Sanchez [2009] VSC 541 …. 1.6, 4.70 Union Fidelity Trustee Co v Montgomery [1976] 1 NSWLR 134 …. 8.12

V V v G [1980] 2 NSWLR 366 …. 4.25, 4.26 Valbe v Irlicht [2001] VSC 53 …. 5.10, 5.13 Valentini v Valentini [2014] VSC 91 …. 2.10 Varnel v Heyes [2008] NSWSC 978 …. 2.60, 4.22 Vasiljev v Public Trustee [1974] 2 NSWLR 497 …. 6.6, 6.8, 6.15, 7.29, 9.8 Vaughan v Hoskovich [2010] NSWSC 706 …. 4.14 Vaysbakh v Vaysbakh [2007] NSWSC 1223 …. 2.51 Ventura v Sustek (1976) 14 SASR 395 …. 9.4, 9.6 Verzar v Verzar [2014] NSWCA 45 …. 5.12 Vickers v Pickering [2016] QDC 58 …. 2.64, 5.2 Vidler v Ivimey [2013] NSWSC 1605 …. 2.5, 4.22

Vigolo v Bostin (2002) 27 WAR 121 …. 4.32 — v — (2005) 221 CLR 191 …. 1.6, 2.3, 2.4, 2.6, 2.63, 3.4, 4.32 Vincent v Rae [2006] VSC 346 …. 3.3 Vines, Re [1939] St R Qd 68 …. 2.40, 4.7 Vitch, Re (1988) 147 LSJS 143 …. 2.22, 4.29 Vo v Lai [2013] NSWSC 1639 …. 10.6 Vrint, Re [1940] 1 Ch 920; [1940] 3 All ER 470 …. 2.2, 3.8, 4.25, 7.11, 7.15 Vukic, Re (2006) 65 NSWLR 370 …. 10.6

W W v C (1981) 28 SASR 130 …. 4.27 Wade v Harding (1987) 11 NSWLR 551 …. 2.51, 4.16 Wadsley v Sutherland [2015] VSC 344 …. 4.65, 4.72 Wakefield v Wakefield (1992) ACL Rep 395 Vic 6 …. 5.9 Wakelin, Re [1927] NZLR 846 …. 5.10, 5.13 Walker, Re [1967] VR 890 …. 5.10, 5.13 Wall v Crane [2009] SASC 382 …. 2.2, 2.10, 2.28, 4.31, 4.67 Walsh v Perpetual Trustee Co (1992) ACL Rep 395 VIC 15 …. 2.10 — v Walsh [2013] NSWSC 1065 …. 2.9, 4.34 Ward, Re [1964] NZLR 929 …. 2.34, 2.44, 4.31, 4.45, 4.49, 5.13 Wardle, In the Estate of (1979) 22 SASR 139; 5 Fam LR 385 …. 2.29, 2.30 Wardy v Salier [2014] NSWSC 473 …. 2.50, 2.51 Warren v McKnight (1996) 40 NSWLR 390 …. 5.12 — v — [1996] NSWSC 419 …. 2.64

Warriner v Warriner [2015] VSC 314 …. 2.2, 2.9, 4.32 Waters, Re (1975) 11 SASR 315 …. 4.7 Watkins, Re [1949] 1 All ER 695 …. 4.52 Waugh-Allcock v Allcock [2008] NSWSC 634 …. 4.11 Webb v Ryan [2012] VSC 377 …. 4.12, 4.24 Webster, Re [1976] 2 NZLR 304 …. 7.5, 7.7 Weekes v Barlow [2014] NSWSC 1776 …. 4.22 Welsby and Parker, Re (1991) 160 LSJS 492 …. 4.18 Welsh v Mulcock [1924] NZLR 673; [1924] GLR 169 …. 2.2, 2.15, 4.5, 4.31, 8.5, 8.6, 8.7, 8.10, 8.20 Wenn v Howard [1967] VR 91 …. 2.34, 2.43 Wentworth v Wentworth (1991) ACL 395 NSW 43 …. 8.11 — v — (SC(NSW), Bryson J, No 3748/89, 14 June 1991, unreported); (CA(NSW), No 40370/91, 3 March 1992, unreported) …. 2.51 — v — (1995) 37 NSWLR 703 …. 2.10, 4.29 West v France [2010] NSWSC 845 …. 2.41 — v Mann [2013] NSWSC 1852 …. 4.30 — v West (1996) 5 Tas R 392 …. 6.13 Weston v Public Trustee (1960, unreported, BC 9601247; ACL Rep 395 (NSW) 19) …. 3.8 — v — (1986) 4 NSWLR 407 …. 3.8, 4.22 — v — (1996) ACL Rep 395 NSW 19 …. 4.3, 4.55, 4.60, 4.65 Weyman v Erdi (1993) ACL Rep 395 NSW 38 …. 7.15 Whalen v Byrnes [2003] NSWSC 915 …. 2.14, 4.72, 5.12 Wheare, Re [1950] SASR 61 …. 4.23

Wheat v Wisbey [2013] NSWSC 537 …. 2.9 Wheatley v Wheatley [2006] NSWCA 262 …. 2.8, 2.10, 2.34 Wherrett, Re [1963] Tas SR 178 …. 5.9, 5.13 White, Re (1932) 49 WN (NSW) 178 …. 6.13 White, Re [1944] GLR 118 …. 4.31, 8.16 White v Barron (1980) 144 CLR 431; 30 ALR 51; 54 ALJR 333 …. 1.6, 2.3, 2.22, 2.23, 2.28, 4.11 — v Chamber (SC(WA), Franklin J, No 1404/82, 27 February 1985, unreported) …. 3.3 — v Muldoon [2006] VSC 204 …. 4.34 — v Pink Batts Insulation Pty Ltd (2002) 12 NTLR 23 …. 9.6 Whitehead v State Trustees [2011] VSC 424 …. 4.22, 4.25, 4.72 Whitfield, Re [1937] VLR 17 …. 4.3, 4.11, 10.2, 10.3, 10.11 Whiting, Re [1938] SASR 188 …. 4.52 Whitington v Whitington [2009] SASC 142 …. 4.3, 4.11 — v — (No 2) [2009] SASC 178 …. 10.2 Whitmont v Lloyd (NSW, 31 July 1995, unreported) …. 4.52 Whitmore v Poole [2006] NSWSC 85 …. 2.10 Whyte v Ticehurst [1986] 2 All ER 158 …. 2.29 Wilkinson, Re [1978] 1 All ER 221 …. 4.72 Wilkinson v Wilkinson (1904) 24 NZLR 156 …. 2.25, 4.29 Willert, Re [1937] QWN 35 …. 2.46, 2.47 Williams, Re [1933] SASR 107 …. 4.52, 4.65 Williams, Re [1945] VLR 213 …. 7.3

Williams, Re [1953] NZLR 151 …. 2.34, 2.40 Williams v Aucutt [2000] 2 NZLR 479 …. 3.4 — v Smith [2006] ACTSC 65 …. 4.28 — v Williams [1937] 14 All ER 34 …. 9.1 Williamson, Re [1954] NZLR 288 …. 2.2, 2.22, 2.25, 4.3, 4.7, 4.23, 4.25, 6.11, 7.11, 7.28 Williamson v Williamson [2011] NSWSC 228 …. 2.10, 4.29 Wilson, Re [1943] NZLR 224 …. 7.11, 7.12, 7.15 Wilson, Re [1956] NZLR 373 …. 2.39, 4.7, 7.11 Wilson, Re [1957] St R Qd 577 …. 4.31 Wilson, Re [1973] 2 NZLR 359 …. 2.2, 2.21, 2.22, 3.8, 4.3, 4.7 Wilson, Re (1992) NZLJ 375 …. 4.33 Wilson v Knight [2009] NSWSC 230 …. 2.19, 4.3 — v Public Trustee [2009] NSWSC 464 …. 2.18, 2.42 — v Wilson (1994) ACL Rep 395 WA 2 …. 2.3 Winder v Public Trustee [1931] GLR 459 …. 4.4, 4.6 Winkworth v Christie Manson & Woods [1980] 1 Ch 496 …. 2.59 Winwood, Re [1959] NZLR 246 …. 6.2 Wlodarczyk v Public Trustee NSW [2006] NSWSC 493 …. 4.3 Wolf v Deavin [2012] NSWSC 1315 …. 2.64, 4.16 Wollard, Re [1953] SASR 173 …. 2.38, 4.7 Wood, Re [1955] NZLR 554 …. 4.45, 4.51, 5.9 Wood, Re (1982) Law Soc Gaz 774 …. 2.5, 3.2, 4.44, 4.52, 4.65 Woodman, Re (1940) 11 ABC 159 …. 10.21

Woods v Cimino [2013] NSWSC 642 …. 4.11 Woodward v Holmes [2009] NSWSC 707 …. 2.19, 4.31 Woolnough v Public Trustee [2005] TASSC 50 …. 4.3 — v Public Trustee (No 2) [2005] TASSC 102 …. 10.2, 10.10 Worladge v Doddridge (1957) 97 CLR 1 …. 2.24, 4.7, 9.3 Worms, Re [1953] NZLR 924 …. 2.34, 2.41, 4.11 Worthington v Dickson (SC(WA), Brinsden J, No 1928/82, 5 June 1986, unreported) …. 3.3 — v Ongley (1910) 29 NZLR 1167 …. 2.13 Wotton, Re [1982] 2 NZLR 691 …. 4.31 Wrchowsky v Perpetual Trustees WA Ltd (1997) ACL Rep 395 WA 15 …. 4.56, 4.65 Wren, Re [1970] VR 449 …. 3.2, 4.25 Wright, Re [1954] NZLR 630 …. 8.16 Wright, Re [1966] Tas SR (NC 1) 287 …. 2.15, 8.9 Wright, Re (Qld, S938/95, Douglas J, 10 September 1999, unreported) …. 7.30 Wright v Gibbeson [2009] NSWSC 1367 …. 3.2 — v Wright [2016] QDC 74 …. 2.10 WTN, Re (1959) 32 ALJ 240 …. 4.52, 4.65

Y Y, Re (1984) 36 SASR 584 …. 4.27 Yarrell, Re [1956] NZLR 739 …. 4.31, 4.45 Yates, Re (1956) 72 WN (NSW) 497 …. 8.2

Ye v Fung (No 3) [2006] NSWSC 635 …. 4.70 Yee v Yee [2016] NSWSC 360 …. 10.6 Yesilhat v Calokerinos [2015] NSWSC 1028 …. 2.64 Younan v Younan (No 2) [2015] VSC 549 …. 5.2, 5.10, 5.13 Young, Re [1965] NZLR 294 …. 2.5, 4.32 Young v Kestel [2003] WASC 190 …. 5.15 — v Salkeld (1985) 4 NSWLR 375 …. 8.2 — v Young (FC(WA), Malcolm CJ, No 64/89, 3 April 1990, unreported) …. 3.3 — v — (SC(WA), Malcolm CJ, No 1139/83, 3 April 1989, unreported) …. 3.3

Z Z, Re [1979] 2 NZLR 495 …. 2.21, 2.28, 4.3, 4.7, 4.11 Zagame v Zagame [2014] NSWSC 1302 …. 4.34 Zahra v Francica [2009] NSWSC 1206 …. 4.12, 4.24 Zechen, Re [1955] QWN 70 …. 4.54, 4.65 Zirkler v McKinnon [2002] NSWSC 285 …. 5.12 Zugan v Zugan [2015] NSWSC 1821 …. 4.32

Table of Statutes References are to paragraphs

Commonwealth Australian Capital Territory Supreme Court Act 1933 s 32 …. 7.4 Bankruptcy Act 1966 s 18 …. 2.33 Commonwealth of Australia Constitution Act s 109 …. 2.51 Family Law Act 1975 …. 2.63, 4.8 ss 90A–90Q …. 2.63 ss 90UA–90UN …. 2.63 High Court Rules 2004 r 21.08 …. 7.28, 7.29 Income Tax Assessment Act 1936 Div 6E …. 7.22 s 51 …. 7.18 s 99A …. 7.26 s 216 …. 7.24 Income Tax Assessment Act 1997 …. 7.21 Div 115 …. 7.22, 7.26 s 30-15 …. 7.24 s 30-15(2) …. 7.24

s 102-5 …. 7.22, 7.26 s 104-10 …. 7.21 s 104-215 …. 7.21, 7.24 s 108-10 …. 7.21, 7.26 s 108-20 …. 7.21, 7.26 s 110-25 …. 7.22 s 114-10 …. 7.22 s 114-10(6) …. 7.22 s 115-30 …. 7.22, 7.26 s 115-230 …. 7.22 s 115-255 …. 7.26 s 118-5 …. 7.21 s 118-10 …. 7.21 s 118-25 …. 7.21 s 118-60 …. 7.24 s 118-145 …. 7.23 s 118-195 …. 7.21, 7.22, 7.23 s 118-200 …. 7.23 s 118-205 …. 7.23 s 118-300 …. 7.21 s 128-10 …. 7.21, 7.26 s 128-15 …. 7.22, 7.23, 7.25, 7.26 s 128-15(3) …. 7.21 s 128-20 …. 7.25

s 128-20(1) …. 7.26 s 128-20(2) …. 7.25, 7.26 s 152-80 …. 7.21 Social Security Act 1991 s 1209M …. 4.53 Superannuation Industry (Supervision) Act 1993 s 59(1A) …. 2.51

Australian Capital Territory Administration and Probate Act 1929 s 8(4) …. 6.13 s 20(2) …. 6.5 s 112(1) …. 5.1 s 113 …. 8.14 Administration and Probate Act 1953 s 2 …. 5.7 s 3 …. 3.2 Administration and Probate Ordinance 1929 Pt VII …. 1.5 s 15 …. 1.6 s 110 …. 1.6 Adoption Act 1993 s 53 …. 4.46 s 57L(2)(c) …. 4.46 Civil Unions Act 2012 …. 4.12 Court Procedure Rules 2006

r 35(3) …. 11.3 r 60 …. 11.3 r 60(4) …. 11.3 r 60(8) …. 11.3 r 61 …. 11.3 r 62 …. 11.3 r 64 …. 11.3 r 74 …. 11.3 r 100(3) …. 11.3 r 102(3) …. 11.3 r 102(5) …. 11.3 r 275 …. 7.28, 7.29 r 275(6) …. 7.29 r 1302 …. 11.3 r 1303 …. 11.3 r 1303(4) …. 11.3 r 1306 …. 11.3 r 1312 …. 11.3 r 1401 …. 11.3 r 1721 …. 10.5 r 5052(1)(c) …. 9.4 r 5405 …. 9.2 r 6712 …. 11.3 Family Provision Act 1969 …. 11.2

s 7 …. 11.2 s 7(1) …. 4.8 s 7(1)(a) …. 4.8, 4.69 s 7(1)(b) …. 4.12, 4.24 s 7(1)(d) …. 4.36 s 7(2) …. 4.43 s 7(3) …. 4.67 s 7(4) …. 4.68 s 7(5) …. 4.26 s 7(7) …. 4.43, 4.67, 4.68 s 7(8) …. 4.25 s 7(9) …. 4.8, 4.12, 4.13, 4.24, 4.69, 4.72 s 8 …. 11.2, 11.3, 11.4 s 8(1) …. 11.2 s 8(2) …. 2.2 s 8(3) …. 11.4 s 8(3)(a) …. 2.34 s 9(1) …. 5.3, 11.2 s 9(3) …. 5.7 s 9(3)(c) …. 2.63 s 9(3)(d) …. 2.63 s 9(4) …. 5.2, 5.10, 5.16, 11.2 s 9(5) …. 5.8 s 9A …. 8.17

s 11 …. 8.9, 8.15 s 16 …. 7.19 s 16(1) …. 5.16, 8.11 s 19 …. 2.47, 7.33 s 20 …. 2.61, 5.16 s 20(2) …. 5.2 s 22 …. 7.11 Law Reform (Miscellaneous Provisions) Act 1955 ss 4–8 …. 2.29 Legislation Act 2001 …. 4.69 Parentage Act 2004 s 9 …. 4.27 s 15 …. 4.27 s 34 …. 4.28 s 35 …. 4.28 s 38 …. 4.26

New South Wales Administration of Estates Act 1954 s 4 …. 5.7 Adoption Act 2000 Ch 5 Pt 2 …. 4.46 s 95 …. 4.45, 4.46 Adoption of Children Act 1965 s 45 …. 4.46 Children and Young Persons (Care and Protection) Act 1998 ….

4.25 Children (Equality of Status) Act 1976 …. 4.26 s 6 …. 4.26 Civil Procedure Act 2005 …. 11.5 Pt 4 …. 7.34 s 98 …. 10.6 Conveyancing, Trustee and Probate (Amendment) Act 1938 s 9 …. 3.2 District Court Act 1973 s 134(1)(c) …. 11.5 s 134(2) …. 11.5 Equity Act 1901 …. 9.8 s 84(2) …. 9.8 s 84(3) …. 9.8 Family Provision Act 1982 …. 2.37, 2.50, 2.51, 2.58, 4.45, 5.7, 8.2, 8.8, 8.18, 10.6, 11.5 s 6(1) …. 3.2, 4.8 s 6(1)(a)(ii) …. 4.69, 4.70 s 6(1)(c) …. 2.58 s 6(1)(d) …. 2.58, 4.69 s 7 …. 2.6, 2.10, 2.58, 4.3 s 8 …. 8.17 s 9 …. 2.6, 2.28, 2.58 s 9(1) …. 2.58 s 9(2) …. 2.2, 2.28 s 9(3) …. 2.28

s 9(3)(b) …. 2.34, 2.38 s 9(5) …. 8.2 s 15(3) …. 8.13 s 16(3)(a) …. 5.7 s 22(1)(a) …. 2.51 s 22(1)(b) …. 2.51 s 22(4)(a) …. 2.51 s 22(4)(c) …. 2.51 s 22(4)(e) …. 2.51 s 28(5) …. 2.55 s 28(5)(c) …. 2.55 s 28(5)(d) …. 2.55 s 31 …. 2.48 s 33 …. 10.6 s 35 …. 6.3 s 35(2) …. 6.3 s 75 …. 7.5 Interpretation Act 1987 s 21C …. 4.14 s 21C(1) …. 4.14 s 21C(2) …. 4.12, 4.14, 4.22, 4.24 s 21C(3) …. 4.14 s 21C(4) …. 4.25 Law Reform (Miscellaneous Provisions) Act 1944

s 2 …. 2.29 Probate and Administration Act 1898 s 92A …. 5.16, 8.2 Property (Relationships) Act 1984 …. 4.25 s 5 …. 4.69, 4.70 s 5A …. 4.25 Relationships Register Act 2010 …. 4.12, 4.14 Status of Children Act 1996 …. 4.25 s 5 …. 4.26 s 13 …. 4.27 s 21 …. 4.27 s 26 …. 4.28 s 29 …. 4.28 Succession Act 2006 …. 2.3, 2.7, 2.8, 2.29, 2.36, 2.50, 2.56, 8.2, 8.13, 8.18 Ch 3 …. 2.50, 6.5, 11.5 Ch 3 Pt 3.3 …. 2.50, 7.5 s 3 …. 4.70 s 3(1) …. 2.50, 2.51, 4.14 s 3(3) …. 4.69 s 3(4) …. 4.70 s 11(1)(b) …. 7.3 s 20 …. 6.13 s 55(1) …. 3.2 s 57 …. 4.8

s 57(1) …. 4.26, 4.29, 4.31, 4.43, 4.45 s 57(1)(a) …. 4.5 s 57(1)(b) …. 4.8, 4.24 s 57(1)(c) …. 4.25 s 57(1)(d) …. 2.58, 4.8 s 57(1)(e) …. 2.58, 4.14, 4.36, 4.45, 4.67, 4.68, 4.69, 4.70, 4.71 s 57(1)(e)(i) …. 4.43 s 57(1)(e)(ii) …. 4.43 s 57(1)(f) …. 2.58, 4.69, 4.70 s 57(2) …. 4.25 s 57(2)(e) …. 4.67, 4.68, 4.69 s 58 …. 11.5, 11.6 s 58(2) …. 5.3, 5.7, 11.9 s 58(3) …. 5.8 s 59 …. 2.2, 2.6, 11.6, 11.11 s 59(1) …. 2.2, 4.8, 4.43 s 59(1)(a) …. 2.58, 3.2 s 59(1)(b) …. 2.58, 4.36, 4.45, 4.67, 4.68, 4.70, 4.71 s 59(1)(c) …. 2.28, 3.2 s 59(2) …. 2.2, 2.6, 4.5 s 59(3) …. 8.17, 8.19 s 60 …. 2.2, 2.6, 2.9, 4.11 s 60(2) …. 2.2, 2.3, 2.28, 4.34, 11.5 s 60(2)(a) …. 2.8

s 60(2)(e) …. 4.5 s 60(2)(g) …. 2.23 s 60(2)(h) …. 2.7 s 60(2)(k) …. 2.11 s 60(2)(m) …. 2.34, 2.38 s 60(2)(n) …. 2.34 s 62 …. 8.2 s 62(1) …. 8.2 s 62(3) …. 5.16 s 63 …. 2.50 s 63(3) …. 2.50 s 63(5) …. 2.50 s 64 …. 7.3 s 65 …. 8.3, 8.15 s 65(1)(d) …. 8.9 s 65(3) …. 8.13 s 66 …. 8.3 s 66(2) …. 8.3 s 66(3) …. 7.19 s 67 …. 8.3, 11.11 s 68 …. 8.3 s 69 …. 8.3 s 70 …. 8.17, 8.18, 8.19 s 71 …. 8.19

s 72(1) …. 5.16, 7.19, 8.11 s 72(2) …. 8.3, 8.15 s 74 …. 2.51 s 75 …. 2.51 s 75(1) …. 2.51 s 75(2) …. 2.51 s 75(3) …. 2.51 s 76 …. 2.51 s 76(1) …. 2.51 s 76(2) …. 2.51 s 76(2)(a) …. 2.51 s 76(2)(b) …. 2.51 s 76(2)(c) …. 2.51 s 76(3) …. 2.51 s 76(4) …. 2.51, 8.18 s 77 …. 2.51, 8.18 s 77(1) …. 2.51 s 77(3) …. 2.51 s 77(4) …. 2.51 s 78 …. 2.51 s 79 …. 2.51, 2.52, 2.53 s 80 …. 2.51, 2.53 s 80(2)(a) …. 2.51 s 80(2)(a)–(c) …. 2.51

s 80(2)(b) …. 2.6, 2.51 s 80(2)(c) …. 2.51 s 81 …. 2.53, 2.54, 11.10 s 81A …. 2.51 s 82 …. 2.51, 2.52, 2.53 s 82(1) …. 2.53 s 82(2)(b) …. 2.53 s 83 …. 2.51 s 83(1)(a)–(d) …. 2.51 s 87 …. 2.51, 2.52, 2.54 s 87(b) …. 2.51 s 88 …. 2.51, 2.52 s 89 …. 2.51 s 89(2) …. 2.51 s 90 …. 2.51, 2.55 s 90(2) …. 2.55 s 90(2)(b) …. 2.55 s 91 …. 11.5 s 92 …. 11.11 s 93 …. 5.2, 6.3 s 93(1) …. 6.3 s 93(2) …. 6.3 s 93(2)(a) …. 6.3 s 93(2)(b) …. 6.3

s 94 …. 6.5 s 94(1) …. 5.16 s 94(4) …. 5.2 s 95 …. 2.47, 2.48 s 95(2) …. 2.47 s 95(4) …. 2.48 s 95(4)(d) …. 2.48 s 96 …. 2.48 s 98(2) …. 7.34 s 98(3) …. 7.34, 8.8 s 99 …. 2.51, 2.56, 10.2, 10.6 s 100 …. 7.11 s 109A …. 4.25 Succession Amendment (Family Provision) Act 2008 …. 11.5 Supreme Court Act 1970 s 63 …. 7.4 s 75A(7) …. 9.4, 9.8 s 75A(8) …. 9.4, 9.8 Supreme Court Rules 1970 …. 11.5, 11.6 Pt 63 r 15 …. 11.10 Pt 70 r 77 …. 11.7 Pt 77 r 59 …. 6.11 Sch J …. 11.7 Sch J cl 1 …. 11.10

Sch J cl 1(b) …. 11.5 Sch J cl 2 …. 11.5 Sch J cl 3 …. 11.5 Sch J cl 3(1) …. 11.5 Sch J cl 4(2) …. 11.5 Sch J cl 5 …. 11.10 Sch J cl 9(1) …. 11.9 Sch J cl 9(2) …. 11.10 Surrogacy Act 2010 s 18 …. 4.25 s 39 …. 4.25 Testator’s Family Maintenance and Guardianship of Infants Act 1916 …. 1.5, 2.26, 5.1 s 3 …. 1.6 s 4 …. 5.16 s 5 …. 2.47, 5.1, 5.7 s 5(2A) …. 5.16 s 6(1) …. 8.14 s 6(2) …. 8.14 s 11(3) …. 5.16 Trustee Act 1925 s 78 …. 8.3 s 78(1) …. 8.3 s 79 …. 8.3 Uniform Civil Procedure Rules 2005 …. 11.5

Pt 7 r 11 …. 11.7 Pt 20 …. 7.34 Pt 45 r 11 …. 11.6 Pt 77 r 65(1) …. 11.11 Pt 77 r 65(2) …. 11.11 r 7.14 …. 7.28, 7.29 r 7.14(2) …. 7.29 r 10.12 …. 11.10 r 42.1 …. 10.6, 10.14 r 42.25 …. 10.3, 10.6 r 49.8 …. 9.2 r 50.3 …. 9.2 r 50.16(4) …. 9.4 Sch 8 …. 11.6 Form 89B …. 11.10

Northern Territory Adoption of Children Act 1964 s 6 …. 4.46 s 39 …. 4.46 s 49 …. 4.46 Adoption of Children Amendment Act 1986 …. 4.46 De Facto Relationships Act 1991 s 3(1) …. 4.12 s 3A …. 4.12, 4.69

s 3A(1) …. 4.15 s 3A(2) …. 4.15 s 3A(3) …. 4.69 Family Provision Act 1970 …. 4.15, 11.18 s 4(1) …. 11.13 s 7(1) …. 11.13 s 7(1)(a) …. 4.3, 4.11, 4.69 s 7(1)(b) …. 4.8 s 7(1)(d) …. 4.36 s 7(1)(eb) …. 4.43 s 7(2) …. 4.8, 4.43, 7.16 s 7(2)(a) …. 4.15 s 7(3) …. 4.67 s 7(5) …. 4.26 s 7(7) …. 4.8, 4.43, 4.67, 4.68, 7.16 s 7(7)(b) …. 4.15, 4.24 s 7(8) …. 4.25 s 8 …. 3.2 s 8(1) …. 2.2 s 8(3) …. 2.34 s 8(4) …. 6.13 s 9(1) …. 5.3 s 9(2) …. 5.7 s 9(4) …. 5.2, 5.10, 5.16

s 9(5) …. 5.8 s 10 …. 11.15, 11.17 s 11 …. 8.9, 8.15 s 16 …. 7.19, 8.11 s 16(1) …. 5.16 s 17 …. 8.17 s 19 …. 2.47, 7.33 s 20 …. 2.61, 5.16 s 20(1) …. 5.2 s 20(2) …. 6.5 s 22 …. 7.11 Interpretation Act s 19A …. 4.3 Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 s 31 …. 4.69 s 38 …. 4.3 Law Reform (Miscellaneous Provisions) Act 1966 ss 5–9 …. 2.29 Status of Children Act 1978 s 4 …. 4.26 s 9A …. 4.27 s 11 …. 4.27 s 12 …. 4.27 s 13 …. 4.28 Supreme Court Act 1979

s 19 …. 7.4 s 54 …. 9.4 Supreme Court Rules r 4.05(b) …. 11.15 r 4.07 …. 11.19 r 15.02 …. 7.28, 7.29 r 15.02(3) …. 7.29 r 29.01 …. 11.18, 11.19 r 30.02 …. 11.18 r 45.02 …. 11.20 r 45.02(1) …. 11.15 r 45.03(3) …. 11.16 r 45.04(4) …. 11.17 r 45.05 …. 11.15 r 63.29 …. 10.20 r 77.01(1)(b)(i) …. 11.17 r 77.03(1) …. 11.17 r 83.04 …. 9.2 r 84.23 …. 9.4 r 85.12 …. 9.2 r 155 …. 4.28 Form 5B …. 11.15 Form 45A …. 11.17 Testator’s Family Maintenance Ordinance 1929 …. 1.5

s 4 …. 1.6 s 5 …. 5.1 s 7 …. 8.14 s 15 …. 1.6

Queensland Acts Interpretation Act 1954 s 32DA …. 4.12, 4.17, 4.69 s 32DA(1) …. 4.17 s 32DA(2) …. 4.17 s 32DA(3) …. 4.17 s 32DA(5) …. 4.69 s 32DA(5)(a) …. 4.69 s 36 …. 4.69 Adoption of Children Act 1964 s 35 …. 4.46 s 38(2) …. 4.46 Adoption of Children Act Amendment Act 1990 s 14 …. 4.46 Civil Proceedings Act 2011 Pt 6 …. 7.34 s 50 …. 7.34 District Court of Queensland Act 1967 Pt 7 …. 7.34 s 68(1)(b)(x) …. 11.21 s 68(2) …. 11.21

Evidence Act 1977 s 92 …. 7.11 Judicature Act 1876 …. 7.4 s 4(8) …. 7.4 Justice and Other Legislation (Miscellaneous Provisions) Act 1997 s 2(5) …. 4.38 s 79 …. 4.39 Status of Children Act 1978 s 3 …. 4.26 s 10 …. 4.27 s 11 …. 4.28 s 18D …. 4.27 Succession Act 1867 …. 7.28 s 90(7) …. 7.28 Succession Act 1867–1977 s 89 …. 4.38 Succession Act 1981 …. 2.49, 4.17, 4.38 s 3(3) …. 8.14 s 4 …. 4.36 s 5AA …. 4.8, 4.17, 4.69 s 5AA(2)(b) …. 4.12 s 5AA(2)(b)(ii) …. 4.69 s 5AA(2)(ba) …. 4.69 s 5AA(c)(i) …. 4.12 s 40 …. 4.8, 4.24, 4.36, 4.39, 4.40, 4.67, 4.68

s 40(c) …. 4.71 s 40A …. 4.40 s 40A(3) …. 4.39, 4.40 s 41(1) …. 2.2, 4.69, 6.5 s 41(2) …. 8.9 s 41(2)(c) …. 2.34 s 41(3) …. 8.15 s 41(6) …. 6.13 s 41(7) …. 7.28 s 41(8) …. 1.6, 5.3, 5.4, 5.7, 11.22 s 41(9) …. 4.27 s 41(10) …. 8.11 s 41(11) …. 2.47, 7.33 s 41(12) …. 2.59 s 42 …. 8.17 s 43 …. 7.19 s 44(2) …. 2.45, 6.5 s 44(3) …. 5.2, 5.4 s 44(4) …. 5.4 s 59 …. 10.2 s 66 …. 2.29 Succession Act Amendment Act 1968 s 90 …. 3.2 Succession Acts and Another Act Amendment Act 1943

s 5 …. 3.2 Supreme Court Act 1991 s 111 …. 7.34 Testator’s Family Maintenance Act 1914 …. 1.5 s 3 …. 1.6 s 3(1B) …. 4.8 s 3(3) …. 8.14 s 3(7) …. 7.28 s 3(8) …. 5.1, 5.7 s 41(4) …. 1.6 Testator’s Family Maintenance Act Amendment Act 1943 …. 4.38 s 2 …. 4.26 Uniform Civil Procedure Rules 1900 O 91 …. 10.8 Uniform Civil Procedure Rules 1999 Ch 9 Pt 4 …. 7.34 r 14 …. 11.23 r 93 …. 7.28, 7.29 r 93(3) …. 7.29 r 209(1)(c) …. 11.23 r 211 …. 11.23 r 341(2) …. 7.34 r 687(2) …. 10.8 r 689 …. 10.8 r 703 …. 10.20

r 704 …. 10.20 r 748 …. 9.2 r 766(1)(c) …. 9.4 Form 5 …. 11.22

South Australia Adoption Act 1988 s 21 …. 4.46 Aged and Infirm Persons’ Property Act 1940 Pt III …. 7.11 District Court Act 1991 s 51(1)(da) …. 4.28 Evidence Act 1929 s 34C(1a) …. 7.11 Family Relationships Act 1975 …. 4.18 s 6 …. 4.26 s 7 …. 4.27 s 7(b) …. 4.27 s 9 …. 4.27 s 11 …. 4.69 s 11A …. 4.12, 4.18, 4.69 s 11A(b) …. 4.18 s 11B …. 4.12, 4.18 s 11B(1) …. 4.18 s 11B(2) …. 4.69 s 11B(3) …. 4.18

s 12 …. 4.18, 4.27 Family Relationships Act 1978 s 7 …. 4.27 Inheritance (Family Provision) Act 1972 …. 7.11 s 4 …. 4.12, 4.18, 4.24 s 6 …. 11.26 s 6(b) …. 4.8 s 6(ba) …. 4.12, 4.24, 4.69 s 6(g) …. 4.36, 4.43 s 6(h) …. 4.27, 4.67 s 6(i) …. 4.68 s 6(j) …. 4.72 s 7 …. 3.2, 7.3 s 7(1) …. 2.2 s 7(3) …. 2.34 s 7(4) …. 8.9 s 8(1) …. 5.3 s 8(2) …. 5.7 s 8(4) …. 2.61, 5.2, 5.16 s 8(6) …. 2.61, 5.8 s 8(7) …. 6.13 s 9 …. 8.15 s 9(5) …. 8.17 s 10 …. 5.16, 7.19, 8.11

s 12 …. 8.17 s 13 …. 2.47, 7.33 s 14(1) …. 5.2 s 14(3) …. 2.61, 5.16 s 15 …. 7.19 Supreme Court Act 1935 s 27 …. 7.4 Supreme Court Civil Rules 2006 r 17 …. 9.2 r 78 …. 7.27, 7.28, 7.29 r 79 …. 7.29 r 146 …. 11.29 r 147 …. 11.29 r 148 …. 11.29 r 149 …. 11.29 r 150 …. 11.28 r 151 …. 11.28 r 152 …. 11.28 r 187 …. 10.2 r 188 …. 10.2 r 195 …. 10.2 r 263 …. 10.9 r 281 …. 9.2 r 286(3) …. 9.4

r 314(2) …. 6.13 r 314(4) …. 6.13 r 314(5) …. 6.13 r 315(a) …. 6.11 r 316 …. 3.8 Supreme Court Rules 1987 r 136 …. 11.27 r 312 …. 11.26 Form 2 …. 11.26 Form 20 …. 11.27 Survival of Causes of Action Act 1940 …. 2.29 Testator’s Family Maintenance Act 1918 …. 1.5 s 2 …. 4.8 s 3 …. 1.6 s 4 …. 5.1, 5.7 s 5(2) …. 8.14 Testator’s Family Maintenance Act 1943 s 3 …. 4.26 s 4 …. 5.7

Tasmania Administration and Probate Act 1935 s 27 …. 2.29 Adoption Act 1988 s 59 …. 4.46 s 60(2)(d) …. 4.46

Alternative Disputes Resolution Act 2001 …. 11.30 Justice and Related Legislation (Miscellaneous Amendments) Act 2015 …. 4.41 Limitation of Actions Act 1954 Sch 2 …. 5.7 Relationships Act 2003 …. 4.12, 4.19, 4.69 s 4 …. 4.19, 4.69 s 4(3) …. 4.19 s 4(4) …. 4.19 Status of Children Act 1974 s 3 …. 4.26 s 7 …. 4.27 s 10 …. 4.27 s 13 …. 4.28 s 14 …. 4.28 Statute Law Revision Act 1934 s 8(2) …. 4.26 Supreme Court Civil Procedure Act 1932 …. 9.5 s 10(7) …. 7.4 s 48 …. 9.4, 9.5 Supreme Court Rules 2000 Pt 9 …. 10.10 r 90(zf) …. 11.30 r 292 …. 7.28, 7.29 r 386 …. 11.30 r 408A …. 11.30

r 659 …. 9.2 r 680A …. 9.2 r 918 …. 10.10 Testator’s Family Maintenance Act 1912 …. 1.5, 4.4 s 1 …. 4.12, 4.69 s 2 …. 4.8, 4.36 s 2(1) …. 4.24 s 2(2) …. 4.26, 4.69 s 2(3)–(5) …. 4.24 s 3 …. 1.6, 3.2 s 3(1) …. 2.2, 10.10 s 3(4) …. 6.13 s 3(5) …. 7.28 s 3A …. 4.12, 4.69 s 3A(c) …. 4.68 s 4 …. 4.12 s 8(1) …. 2.34 s 8(2) …. 2.47 s 8A …. 7.11 s 9 …. 11.30 s 9(1) …. 8.14 s 9(1)(d) …. 8.9 s 9(3) …. 5.16, 7.19, 8.11 s 9(4) …. 4.5

s 9(5) …. 8.17 s 10A …. 8.14, 8.15 s 10A(2) …. 1.6 s 11 …. 1.6, 5.1, 5.3, 5.7 s 11(2) …. 5.7 s 11(4) …. 5.2

Victoria Administration and Probate Act 1915 Pt IV …. 1.6 s 97(4) …. 5.16 s 99 …. 5.2, 5.7, 5.13, 5.16 s 99A …. 5.2, 5.13 s 99A(1) …. 6.5 s 99A(3) …. 5.2 s 99A(3)(b) …. 5.2 s 108 …. 1.6 s 117 …. 1.6, 5.1 Administration and Probate Act 1928 …. 2.1 Administration and Probate Act 1958 …. 2.1, 4.20, 4.72 Pt IV …. 11.31 s 3 …. 4.24 s 3(1) …. 4.20, 4.69, 4.70 s 15 …. 11.31 s 29(1) …. 2.29

s 90 …. 4.8, 4.20, 4.24, 4.42, 4.67, 4.69, 4.71 s 90(a) …. 4.69 s 90(c) …. 4.44, 4.45 s 90(d) …. 4.71 s 90(f) …. 4.44, 4.45 s 90(g) …. 4.71 s 90(h) …. 4.70 s 90(k) …. 4.71, 4.72 s 91 …. 3.2, 4.8, 4.36 s 91(1) …. 4.8, 4.12 s 91(2)(c) …. 2.6 s 91(3) …. 2.2 s 91(4) …. 11.34 s 91(4)(d) …. 4.67, 4.71 s 91(4)(o) …. 2.34 s 91(5)(b) …. 4.67, 4.71 s 94(c) …. 7.11 s 96(2) …. 8.9 s 97(2) …. 8.15 s 97(4) …. 7.19, 8.11 s 97(5) …. 8.17 s 98 …. 7.19 s 99 …. 5.3, 11.31 Administration and Probate (Family Provision) Act 1962 …. 4.8

s 5 …. 4.26 Administration and Probate (Testator’s Family Maintenance) Act 1937 s 6 …. 5.7 Adoption Act 1984 s 42(2) …. 4.46 s 66 …. 4.46 Adoption of Children Act 1928 s 7 …. 4.45 Courts Legislation (Jurisdiction) Act 2006 …. 11.32 Guardianship and Administration Act 1986 s 66(3) …. 4.62 Guardianship of Infants Act 1920 …. 5.7 Justice Legislation Amendment (Succession and Surrogacy) Act 2014 …. 1.6, 4.20 s 3(2) …. 4.67 s 90(e) …. 1.6 s 90(g) …. 1.6 s 90(h) …. 1.6 s 90(j) …. 1.6 s 90(k) …. 1.6 Miscellaneous Acts (Omnibus No 1) Act 1998 …. 1.6 Relationships Act 2008 …. 4.12, 4.20, 4.70 s 3 …. 4.70 s 10(3)(ab) …. 4.70 s 39(1) …. 4.69

Status of Children Act 1974 s 3 …. 4.26 s 7 …. 4.27 s 10 …. 4.27 Supreme Court Act 1958 s 61(7) …. 7.4 Supreme Court Act 1986 Pt IV …. 10.11 s 24 …. 10.11 s 97 …. 10.11 s 97(6) …. 10.11 s 97(7) …. 10.11, 10.14 Supreme Court (Administration and Probate) Rules 2004 r 6.07 …. 5.5 Supreme Court (General Civil Procedure) Rules 2005 …. 10.11 Ch I …. 11.31, 11.33, 11.37 Ch II …. 11.31 Ch III …. 11.31 O 16 …. 11.31 r 5.02 …. 11.33 r 6.07 …. 11.31 r 15.02 …. 7.28, 7.29 r 15.02(3) …. 7.29 r 16.04 …. 11.31 r 16.05 …. 11.33

r 16.06 …. 11.33 r 16.07 …. 11.33 r 45.05 …. 11.37 r 64.03 …. 9.2 r 64.22(3) …. 9.4 r 77.01(b) …. 8.8 r 77.05 …. 9.2 Form 5B …. 11.37 Testator’s Family Maintenance Act 1939 …. 5.1 Trustee Act 1958 s 19 …. 11.35 Widows and Young Children Maintenance Act 1906 …. 1.5, 4.6 s 2 …. 1.6 s 9(3) …. 8.14 s 11 …. 1.6, 5.1, 5.7 Wills Act 1997 …. 1.6, 4.42

Western Australia Adoption of Children Act 1896 s 14 …. 4.46 s 15(2) …. 4.46 Evidence Act 1906 s 79C …. 7.11 Guardianship of Infants Act 1920 s 11 …. 1.5, 1.6, 5.1 s 14(1) …. 1.6

Family Provision Act 1972 (formerly called the Inheritance (Family and Dependants Provision) Act 1972) …. 2.61, 11.43, 11.44 s 4 …. 4.26 s 6 …. 3.2 s 6(1) …. 2.2 s 6(3) …. 2.34, 8.9 s 7(1)(a) …. 4.12, 4.69 s 7(1)(b) …. 4.8 s 7(1)(d) …. 4.67 s 7(1)(e) …. 4.68 s 7(1)(ea) …. 4.36, 4.43 s 7(1)(eb) …. 4.36 s 7(1)(f) …. 4.24 s 7(2) …. 5.3, 5.7 s 7(2)(b) …. 2.61 s 7(7) …. 4.43 s 8 …. 2.61 s 10 …. 7.19, 8.11 s 11 …. 6.5 s 12(2) …. 6.13 s 14 …. 8.15 s 14(4) …. 11.44 s 16 …. 8.17 s 19 …. 2.47, 7.33

Interpretation Act 1984 s 13A …. 4.12, 4.69 s 13A(1) …. 4.69 s 13A(3) …. 4.69 Law Reform (Miscellaneous Provisions) Act 1941 s 4 …. 2.29 Rules of the Supreme Court 1971 O 12(1) …. 11.40 O 58 …. 11.41 O 59 …. 11.41 O 61A …. 11.44 O 63 r 10(1) …. 9.4 O 66 r 1 …. 10.12 O 70 r 2 …. 7.28, 7.29 O 70 r 2(3) …. 7.29 O 75 …. 11.38 O 75 r 2 …. 11.40 O 75 r 2(2) …. 11.40 O 75 r 3 …. 11.40 O 75 r 4 …. 11.40, 11.41 O 75 r 5 …. 11.41 O 75 r 6 …. 11.45 O 75 r 7 …. 11.46 O 75 r 8 …. 11.47 O 75 r 8(1) …. 11.44

O 75 r 8(2) …. 11.44 O 75 r 9 …. 11.47 Supreme Court Act 1935 s 24(7) …. 7.4 s 72(1)(ea) …. 4.28 Supreme Court (Court of Appeal) Rules 2005 Pt 5 r 26(2) …. 9.2 r 47(3)(d) …. 9.4 Testator’s Family Maintenance Act 1939 …. 4.9, 5.1, 5.7, 11.39 s 2 …. 4.8 s 4 …. 5.1, 5.7 s 4(1) …. 11.39 s 4(2) …. 11.39 s 5 …. 8.14 s 6(4) …. 11.39 s 7(2)(a) …. 11.39 s 7(2)(b) …. 11.39 s 7(3) …. 11.39 s 8 …. 11.39 s 10 …. 5.16 s 12 …. 11.39 s 13 …. 11.39 s 14 …. 11.39 s 15 …. 11.39 s 16 …. 11.39

s 17 …. 11.39 s 20(1) …. 5.2 s 21 …. 11.39 Trustees Act 1962 …. 11.39 s 65 …. 2.61

Canada Devolution of Estates Act (Sask) 1909 …. 1.7

New Zealand Administration Act 1969 s 49 …. 5.16 Adoption Act 1955 s 16(2)(d) …. 4.47, 4.48 Family Protection Act 1908 …. 4.26 Pt II …. 3.2 s 33 …. 2.47 s 33(1) …. 4.4 s 33(10) …. 7.28 s 33(13) …. 8.5 Family Protection Act 1955 …. 2.21, 3.2, 4.47, 7.15 s 3 …. 4.4 s 3(2) …. 2.6 s 5(1) …. 2.44 s 11A …. 6.7 s 12(1) …. 8.5

s 13 …. 2.17 s 33(2) …. 7.15 Family Protection Amendment Act 1921–1922 s 2 …. 1.6, 5.7 Social Security Act 1964 …. 2.17 Social Security Amendment Act 1950 s 18(3) …. 2.17 Statutes Amendment Act 1936 s 26(1) …. 1.6, 4.26 Statutes Amendment Act 1939 …. 3.2 s 22 …. 3.2 Testator’s Family Maintenance Act 1900 …. 1.5, 1.6, 1.7, 5.7, 8.5, 8.14 s 1 …. 4.4 s 2 …. 1.6 s 4 …. 5.1 Testator’s Family Maintenance Act 1906 …. 8.14 s 3(1) …. 4.4 s 3(2) …. 4.67 s 3(4) …. 8.14 s 3(9) …. 1.6, 5.7 s 3(13) …. 8.5

United Kingdom Dower Act 1833 …. 1.3 Inheritance (Family Provision) Act 1938 …. 1.3

s 2(1) …. 5.1 s 4A …. 8.2 s 6(2) …. 1.5 Inheritance (Provision for Family and Dependants) Act 1975 …. 4.48 s 1 …. 3.2, 7.3 s 3(1)(a) …. 4.10 s 5 …. 8.2, 8.4 s 42(4) …. 4.49 Mortmain and Charitable Uses Act 1891 …. 1.3 Statute of Wills 1540 …. 1.3

Abbreviations Legislation ACT Act NSW Act NSW 1982 Act NT Act Qld Act SA Act Tas Act Vic Act WA Act

Family Provision Act 1969 Succession Act 2006 Family Provision Act 1982 (repealed) Family Provision Act 1970 Succession Act 1981 Inheritance (Family Provision) Act 1972 Testator’s Family Maintenance Act 1912 Administration and Probate Act 1958 Family Provision Act 1972

Case tables All capital values of annuities or other regular payments shown in the tables were calculated by Towers Perrin Forster and Crosby, Actuaries and Management Consultants, Brisbane. A a/c(s) age D d/d Dff incl int

applicant account(s) shown in years unless otherwise indicated deceased date of death defendant including interest

mat

matrimonial

mth(s) n/c n/s pa PR PT p/wk r&r T yr(s) w/hood

month(s) not able to be calculated not stated per annum personal representative Public Trustee per week rest and residue testator/testatrix year(s) widowhood

Generally Pt; O; r r (R)

note

refer to the Part, Order and/or Rule of the Supreme Court Rule of the Australian state or territory whose jurisdiction is being discussed or the Rule of the High Court of New Zealand, as the case may be footnote

Book References References to the following works use either the abbreviations listed below or a shortened form of citation. Page references are to these editions. Amos and Walton

F H Lawson, A E Anton and L N Brown, Amos & Walton’s Introduction to French Law, 3rd ed, Clarendon Press, Oxford, 1967

Buckland and McNair

W W Buckland and A A McNair, Roman Law and Common Law, 2nd ed (revised by F H Lawson), University Press, Cambridge, 1965

Davern Wright

R J Davern Wright, Testator’s Family Maintenance in Australia and New Zealand, 3rd ed, Law Book Co, Sydney, 1974

Feeney

T G Feeney, The Canadian Law of Wills, Vol 1, Probate, 2nd ed, Butterworths, Canada, 1982

Holdsworth

Sir W A Holdsworth, History of English Law, 4th ed, Methuen, London, 1936

Jolowicz

H F Jolowicz and B Nicholas, Historical Introduction to the Study of Roman Law, 3rd ed, University Press,

Cambridge, 1972 Maine

Sir H S Maine, Ancient Law, Oxford University Press, London, 1861 and 1931 (1939 reprint)

Mason, Tuthill and Lennard

H H Mason, A C Tuthill and C G Lennard, The Principles and Practice of Testator’s Family Maintenance in Australia & New Zealand, Law Book Co, Sydney, 1929

Megarry and Wade

Rt Hon Sir R Megarry and H W R Wade, The Law of Real Property, 5th ed, Stevens and Sons, London, 1984

Patterson

W M Patterson, The Law of Family Protection and of Testamentary Promises in New Zealand, Butterworths, Wellington, 1985

Potter

A K R Kiralfy, Potter’s Historical Introduction to English Law and its Institutions, 4th ed, Sweet and Maxwell, London, 1962

Preece

A A Preece, Lee’s Manual of Queensland Succession Law, 6th ed, Lawbook Co, Sydney, 2007

Radcliffe and Cross

Sir G Cross and G D G Hall, Radcliffe and Cross, The English Legal System, 4th ed, Butterworths, London, 1964

Ryan

K W Ryan, An Introduction to the Civil Law, Law Book Co, Sydney, 1962

Tyler

R D Oughton, Tyler’s Family Provision, 3rd ed, Butterworths, London, 1997

Windeyer

W J V Windeyer, Lectures on Legal History, 2nd ed (revised), Law Book Co, Sydney, 1957

Contents Publisher’s Note Preface Contributing Editors Table of Cases Table of Statutes Abbreviations Book References

1

Historical Background Introduction Roman law origins England 1066–1938 Colonial Australia and New Zealand The New Zealand initiative of 1900 Developments in Australia and New Zealand since 1900 Conclusion

2

Approach to Claims Generally Introduction Requirement to provide ‘adequate’ and ‘proper’ maintenance Applications a two-stage process Applicant’s need and moral claim

Need Moral claim Contribution to the building up of the deceased’s estate Relationship between the applicant and the deceased Adult children as claimants Estrangement Estrangement between the applicant and the deceased Deceased’s influence on applicant’s lifestyle Relevance of the applicant’s conduct in reducing a moral claim Competing claims Generally By charities and/or strangers Relevance of support or benefits received by applicant or beneficiary Spendthrift beneficiary Effect of a pension on a claim Indirect benefits Where court not advised of beneficiary’s financial position The ‘wise and just’ test Effect of prevailing community attitudes Implications of this approach Some older cases of limited relevance No inflexible rules

Legislation interpreted expansively Court has no general power to rewrite the will Judicial commentary on the legislation Date at which eligibility is determined Relevance of circumstances at date of death and date of order Effect of death of applicant Quantification of a claim after death of applicant Death of an applicant after an order has been made Effect of age of applicant Effect of bankruptcy of applicant Conduct disentitling Legislation Relevance of prevailing community attitudes What constitutes character or conduct disentitling? Widows and widowers Adultery Desertion Separation Conduct which does not amount to conduct disentitling Children Conduct of a child not amounting to conduct disentitling Onus of proof Queensland — consent to distribution disentitles

Contracting out and forfeiture clauses Contracting out New South Wales — release of right to apply for provision Forfeiture clauses New South Wales — notional estate provisions Where there has been a ‘relevant property transaction’ Where there has been a distribution from the estate of the deceased Section 82 Additional notional estate orders Where application brought out of time Costs Law reform New South Wales — factors warranting Queensland — donatio mortis causa Public policy Where the estate has been distributed Method of calculation of lump sum Effect of financial agreements on family provision applications Summary dismissal Caveatable interest Crisp orders

Approach in Particular Circumstances

3

Introduction Intestacy Family farms Large estates Contingencies allowed for in claims against large estates Recent change of approach Small estates

4

Particular Applicants Introduction Widows Background Classic or archetypical widows Effect of remarriage on a spouse’s claim Historical background Current position Effect of separation on a claim Former (divorced) wives ‘Receiving or entitled to receive’ maintenance Relevant considerations generally Second or subsequent wives De facto widows/partners Australian Capital Territory New South Wales

Northern Territory Queensland South Australia Tasmania Victoria Western Australia Decided cases Widowers De facto widowers/partners Infant children Ex-nuptial children History of the legislation Proof of paternity and maternity generally DNA tests to determine relationship Unmarried daughters Divorced daughters Married daughters Adult sons Alcoholic sons Stepchildren Queensland Tasmania Victoria Eligibility of stepchildren to apply in other jurisdictions

Approach to claims Adopted children Recognition of foreign adoptions Right to apply in the estate of a natural parent Approach to applications by adopted children Spendthrift applicants Persons with an intellectual disability Persons institutionalised Special disability trusts Persons living in the community Procedural steps Quantum Victoria — payment to administrator Summary Other eligible applicants Grandchildren Parents Same-sex partners Carers Foster children Others

5

Time Limits Introduction

Extensions of time after distribution Time limits Queensland — caveat to formal time limitations Victoria — notice to the registrar When time begins to run Extension of time When application is made Where extension may be granted Where extension is refused Factors generally relevant New South Wales and Queensland Victoria South Australia Western Australia When is the estate distributed? Effect of transmission applications Oversight by a solicitor

6

Duties of the Personal Representative Introduction Duty not to distribute assets after a notice of application New South Wales — distribution following s 93 notice Notice of application given after time limit Exceptions to the duty not to distribute

Duty to uphold the will or distribution on intestacy Duty to assist the court generally Duty as to separate representation Duty of a personal representative acting in different capacities Duty of counsel for the personal representative Duty to inform the court of the details and value of the estate’s assets and liabilities Duty of personal representative in small estates Multiple applications Where persons under a disability have been left without adequate provision Where beneficiaries are under a disability Duty of personal representative on appeal

7

Miscellaneous Considerations Introduction Applicant’s obligation to the court Jurisdiction Construction of the will in family provision applications Contract to leave property by will Evidence Evidence generally by affidavit Medical evidence Deceased’s reasons for testamentary dispositions

Basis of admissibility (in the absence of specific legislative provision) Relevance of the deceased’s reasons Effect of divorce settlements on family provision applications Settlement considerations Revenue implications Stamp duties Capital gains tax Disability of a party Application by litigation guardian where applicant under a disability Litigation guardian required where beneficiary under a disability Protection of disabled beneficiary’s entitlement Duties of a litigation guardian Remuneration of a litigation guardian Prohibition on assignments Mediation — New South Wales and Queensland

8

Orders Introduction Interim orders Orders in New South Wales Legislation addressing the issue of interim maintenance

Suspensory orders Consent orders Conditional orders Postponement of operation of order Effect of order Where the order takes effect as if made by a codicil Where the order does not take effect as if made by a codicil Incidence of order Historical perspective Current position Order applying to a particular share of the estate Variation of orders Variation and revocation of orders — New South Wales Orders where beneficiary is bankrupt

9

Appeals Introduction Time limits Principles applicable Admission of further evidence Duty of personal representative on appeal Security for costs Costs on appeal

10 Costs Introduction Successful applications Unsuccessful applications Australian Capital Territory New South Wales Northern Territory Queensland South Australia Tasmania Victoria Western Australia General overview Where dismissal of application arises from a technical question Costs orders where applicant dies before trial Costs on appeal Successful appeals Unsuccessful appeals Unsuccessful applications by Public Trustees Taxation on a solicitor–client basis Costs of the personal representative Costs of litigation guardian

11 Procedure Introduction Australian Capital Territory Procedure for application Current judicial interpretation of procedure for family provision applications in the Australian Capital Territory New South Wales Application made in the Supreme Court Nature of the procedure Discovery and interrogatories Nature of the evidence to be filed Procedure subsequent to the hearing Draft documents Northern Territory Procedure for application Application by an originating motion Proceeding in default of appearance Proceeding after appearance Discovery and interrogatories Exceptional cases Hearing Queensland Jurisdictional issue

Procedure for application Disclosure and inspection of records South Australia Application made in the Supreme Court Procedure Discovery Interrogatories Discovery against a person not a party and before action Tasmania Victoria Preliminary matters Application to the Supreme Court or County Court Procedure Affidavit in support of the plaintiff’s claim Compromises of applications for family provision Final orders for family provision Application for an extension of time Western Australia Statutory requirements Mode of application Summons for directions Form of directions order Additional parties Representative defendant

Minor procedural rules

Appendix I

Forms and Precedents

Australian Capital Territory New South Wales Northern Territory Queensland South Australia Tasmania Victoria Western Australia

Appendix II Family Provision Application Checklist 1

Introduction

2

General information

3

Establish eligibility of proposed applicant to make a claim

4

Is the application within time?

5

Basic personal details of the proposed applicant

6

Marital status

7

State of health, including mental health/incapacities

8

Name, age and date of birth of any children or dependants of the proposed applicant

9

Station in life

Deceased’s maintenance or support of the proposed 10 applicant, whether direct or indirect 11

Financial circumstances of the proposed applicant

12 Contribution to build-up of the deceased’s estate by the proposed applicant 13

Relationship with the deceased

14 Value and location of the estate of the deceased 15

Competing or other claims on the estate of the deceased

16

Any grounds for disentitlement or reduction of provision

17

Widows/widowers simpliciter (whether first or subsequent)

18 Widows/widowers — divorced 19

Widows/widowers — de facto

20 Infant children 21 Adult daughters 22 Adult sons 23 Stepchildren 24 Other eligible applicants 25 Details to be obtained to resist a claim

Appendix III

Family Provision Legislation

Australian Capital Territory — Family Provision Act 1969 New South Wales — Succession Act 2006 Northern Territory — Family Provision Act 1970

Queensland — Succession Act 1981 South Australia — Inheritance (Family Provision) Act 1972 Tasmania — Testator’s Family Maintenance Act 1912 Victoria — Administration and Probate Act 1958 Western Australia — Family Provision Act 1972 Index

[page 1]

Historical Background 1 Introduction 1.1 This chapter seeks to provide readers with some historical perspectives on the law of family provision, which is part of that area of the law generally referred to as succession law or the law of wills and estates. While the text has been written with the needs of our fellow practitioners in mind, an understanding of any area of the law is enhanced by some knowledge of its origins and development. History may also point to the likely or best course for reforms, something which is now underway for the law of family provision through the National Committee for Uniform Succession Laws project, an initiative of the Standing Committee of Attorneys-General. The report dealing with family provision was released in December 1997,1 with a supplementary report released in July 2004.2 The reports recommend some reforms to the current law, notably the adoption of the New South Wales ‘notional estate’ provisions, referred to in 2.50. Some commentators have called for a more fundamental review, arguing, for example, that: Family Provision legislation today is in a muddle. It jumbles up its original logic and dilutes the logic of testamentary freedom … [I]t is timely for law reformers across common law jurisdictions to confront the place of family provision in its

wider context: namely separate property or family property; and its relationship to provisions on dissolution of marriage.3

[page 2]

Roman law origins 1.2 Our law of wills and succession to property on death has its origin in Roman law. In England, the ecclesiastical courts, which had been established by William of Normandy following the conquest of England in 1066 as a quid pro quo for a papal blessing on the invasion,4 acquired jurisdiction in such matters by the reign of Henry II (1154–1189).5 The law applied in the ecclesiastical courts was canon law, which had its basis in Roman law, with procedure also taken from Roman law.6 However, until 1540, real property devolved according to other rules. By the time of the Twelve Tables (circa 450 BC), testamentary freedom was fundamental to the Roman law of succession.7 This freedom was restricted by a law (lex Falcidia) passed at the end of the period known as the Republic (that is, circa 27 BC) which guaranteed heirs a fixed portion of the estate.8 Further restrictions were introduced in the second century (lex Pegasian).9 During the period known as the Empire (285–565 AD), a procedure was developed by which the Centumviral Court10 could set aside a will that unjustly failed to provide for certain close relatives.11 In basic concept, there is remarkable similarity between Roman law at this period and the legislative regime in Australia at the present time. Application to the Centumviral Court was originally limited to widows and children but, in time, other family members who would have been entitled on intestacy were allowed to apply.12

The development of testator’s family maintenance legislation since 1900 has followed the same path of widening the class of eligible applicants. Soon after the publication of the Digest (533 AD), Justinian made a further alteration to the law by allowing a testator to insert a clause that excluded the restrictions imposed by the previous laws (lex Falcidia and lex Pegasian).13 Thus, testamentary freedom, subject to review by the court in special cases, was a feature of Roman law by the sixth century, and was later to find its way into English law through its application by the ecclesiastical courts. [page 3]

England 1066–1938 1.3 The rules for the devolution of real property in Anglo-Saxon times are not known, but the probability is that it devolved to an heir.14 From the time of the Norman Conquest in 1066 until 1540 it was impossible for land to pass by will.15 After 1540, testamentary freedom, which by then applied generally to personalty, also applied to realty with minor exceptions.16 Until the fourteenth century, the widow and children had been entitled to a fixed share of personalty and a testator could only dispose of the balance. This regime disappeared from most of England during the 1500s, surviving only in York until 1692 and in London until 1724.17 After 1724 came the period that Lord Simon of Glaisdale has described as ‘an interval of unbridled testamentary licence’.18 However, minor restrictions on testamentary freedom still existed, for example the widow’s right of dower (a life interest in one-third of the husband’s freehold property, which was

abolished by the Dower Act 1833) and restrictions on gifts to charity (which were removed by the Mortmain and Charitable Uses Act 1891). Tyler comments that absolute testamentary freedom only existed in English law from 1891 to 1938 when the Inheritance (Family Provision) Act was passed;19 nevertheless, Lord Simon’s comment is essentially correct. Although recognised in Roman law, the possibility that absolute testamentary freedom could result in injustice in a particular case does not seem to have been of concern in England after the Statute of Wills in 1540. The reason seems to be that those with substantial property tended to dispose of much of it during their lifetime by means of inter vivos trusts and marriage settlements.20

Colonial Australia and New Zealand 1.4 Conditions in the colonies of Australia and New Zealand in the nineteenth century were somewhat different from those in England. Society was more egalitarian and marriage settlements were rare. Most colonists began life with little or nothing in the way of assets and acquired little during their lives. If financially successful, however, the [page 4] average colonist was likely to distribute the fruits of that success only on death.

The New Zealand initiative of 1900 1.5

Injustice in testate succession was first publicly recognised

in New Zealand in 1896 when a bill drafted by Sir Robert Stout, who was a few years later to become the Chief Justice of New Zealand, was introduced into the parliament.21 The bill, entitled ‘The Limitation of Power of Disposition by Will’, proposed a system of inheritance similar to that adopted in Scotland. Under that system, certain fixed shares were required by law to pass to a testator’s widow and children. He was free to leave only a small part of his estate to others by will. It was a system also in use on the European continent, and it still applies there.22 The bill was rejected.23 In 1900, the New Zealand Parliament passed the Testator’s Family Maintenance Act, the first family provision legislation in the common law world. This short enactment of 22 lines was assented to on 9 October 1900. Within 20 years all Australian states had introduced similar legislation.24 The territories followed in 1929.25 This legislation was eventually introduced into the United Kingdom in 1939, after what might be described as a protracted battle. In 1908, British ambassadors in various countries, at the suggestion of His Majesty King Edward VII, were instructed to report on the various systems of restraints on testamentary freedom.26 In the 1930s, several bills were introduced into the parliament, but it was not until 1938, on a fourth attempt, that the first Act was passed. It came into force on 14 July 1939.27 [page 5]

Developments in Australia and New Zealand since 1900

1.6 Since 1900, legislative development in Australia and New Zealand has followed two paths, one of broadening the class of eligible applicants and the other of increasing the powers of the court in adjudicating claims. Whatever variations may have been introduced, the essential thread of principle has remained unbroken. A person’s freedom to dispose of his or her estate is unrestricted, except to the extent that there has been a failure to make proper provision for the maintenance and support of those who are seen at the time as entitled to such maintenance and support. Apart from this exception, the court has no power to rewrite the will even where the deceased has been unjust towards deserving members of his or her family. Initially, eligibility to apply (except in Victoria) was limited to spouses and children.28 In Victoria a widow (but not a widower) could apply and, in the case of children, eligibility to apply was restricted to sons under 18 years of age and unmarried daughters under 21 years of age.29 In 1936, New Zealand and Tasmania allowed claims by ex-nuptial children.30 This development was followed in Queensland and South Australia in 1943 and in the other states and territories by 1977.31 In time, former spouses, de facto spouses and dependants (broadly defined) were also permitted to apply.32 Just as the range of eligible applicants has expanded over time, so have the courts’ powers. They have been extended in areas such as the power to order lump sum awards,33 extend time to bring an [page 6] application,34 exonerate part of an estate from an order,35 and hear an application where there has not been a grant of representation.36

A further broadening of the class of eligible applicants occurred in Victoria in 1998. That state abandoned the traditional categorisations of eligible applicants in favour of allowing the court to decide whether a person had a right to apply, the basis being the responsibility of the deceased to provide for the applicant.37 This development was considered to be part of a continuum rather than a complete break from the past.38 This regime was altered in 2014 by the Justice Legislation Amendment (Succession and Surrogacy) Act, with amendments coming into force on 1 January 2015. Although in broad terms the amendments were a return to the past where parliament determined who could apply, restrictions were placed on one class of applicant39 but new classes were allowed compared to the position before 1998. New classes include foster children,40 registered caring partners,41 the spouse or domestic partner of a child who dies within one year of the deceased’s death42 and a person who at the deceased’s death is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member.43 [page 7] Since 1900, the courts have worked out general principles to be applied in these applications44 and guidelines for each class of applicant have been developed.45 The editor of the Australian Law Journal for 1941 wrote that Dominion Equity judges had given the jurisdiction here a settled body of practice which made it possible to advise clients with accuracy as to claims under the legislation.46 The statement represents the triumph of hope over experience. Even with the wealth of decided cases (both reported and

unreported) that are accessible today, outcomes cannot be predicted with precision.

Conclusion 1.7 The New Zealand legislation of 1900 was not a solution to problems in testate succession that were unique to New Zealand. The problems that faced the New Zealand Parliament were the same in other parts of the English-speaking world and had been identified by Roman jurists 1900 years earlier.47 The solution was the same as that adopted by the Romans through their Centumviral Court during the period 285–565 AD. New Zealand’s great contribution to this part of the law of succession lies in the fact that it led the way in the modern world,48 and other common law jurisdictions quickly chose to follow. _______________________ 1.

Queensland Law Reform Commission (QLRC) Miscellaneous Paper 28.

2.

QLRC Report 58.

3.

See R Croucher, ‘Contracts to Leave Property by Will and Family Provision after Barns v Barns (2003) 214 CLR 169; 196 ALR 65 — Orthodoxy or Aberration?’ (2005) Sydney Law Review 263.

4.

Potter, p 16; Windeyer, p 38.

5.

Radcliffe and Cross, p 231.

6.

Ibid, pp 31, 32.

7.

Maine, p 231. See also Lieberman v Morris (1944) 69 CLR 69 at 85.

8.

Buckland and McNair, p 167.

9.

Ibid, p 168.

10.

The court was selected from a panel of 180 persons for each particular case: see Jolowicz, p 198.

11.

Ryan, p 197; Maine, p 231; Buckland and McNair, pp 167–8.

12.

Buckland and McNair, p 168.

13.

Ibid.

14.

Holdsworth, Vol 2, p 1.

15.

Megarry and Wade, p 499.

16.

Ibid.

17.

Potter, p 559; Megarry and Wade, p 499.

18.

Schaefer v Schuhmann (1972) 46 ALJR 82 at 90, although Lord Simon has this period beginning at the start of the eighteenth century, subject to some restrictions arising from local customs.

19.

Tyler, p 3.

20.

Potter, p 560; Holdsworth, Vol 5, pp 309–15; Vol 7, p 376.

21.

New Zealand Parliamentary Debates 1896, Vol 92, pp 386 and 585–7.

22.

Ryan, pp 196–200; Amos and Walton, pp 333–8.

23.

New Zealand Parliamentary Debates 1900, Vol 112, pp 503, 504 and 587.

24.

Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW); Testator’s Family Maintenance Act 1914 (Qld); Testator’s Family Maintenance Act 1918 (SA); Testator’s Family Maintenance Act 1912 (Tas); Widows and Young Children Maintenance Act 1906 (Vic); Guardianship of Infants Act 1920 (WA) s 11.

25.

Administration and Probate Ordinance 1929 (ACT) Pt VII; Testator’s Family Maintenance Ordinance 1929 (NT).

26.

J Unger, ‘The Inheritance Act and the Family’ (1943) 6 Mod LR 215 at 223.

27.

Inheritance (Family Provision) Act 1938 (UK) s 6(2). For an account of the protracted battle to introduce testator’s family maintenance legislation in the UK, see J Unger, ‘The Inheritance Act and the Family’ (1943) 6 Mod LR 215 at 223; and Tyler, pp 1–31.

28.

Testator’s Family Maintenance Act 1900 (NZ) s 2; Administration and Probate Ordinance 1929 (ACT) s 110; Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) s 3; Testator’s Family Maintenance Ordinance 1929 (NT) s 4; Testator’s Family Maintenance Act 1914 (Qld) s 3; Testator’s Family Maintenance Act 1918 (SA) s 3; Tas Act s 3; Guardianship of Infants Act 1920 (WA) s 11.

29.

Widows and Young Children Maintenance Act 1906 (Vic) s 2; Administration and Probate Act 1915 (Vic) s 108.

30.

Statutes Amendment Act 1936 (NZ) s 26(1); for Tasmania, see 4.26.

31.

See 4.26.

32.

See 4.8, 4.12 and 4.66–4.72.

33.

For the problems caused by the absence of such a power, see Re Mailes [1908] VLR 269.

34.

For example, under the NZ 1900 Act, the court had no power to extend time. This was followed in Victoria (1906 Act s 11; 1915 Act s 117) and Tasmania (1912 Act s 11). In 1906, the New Zealand court had power to extend time up to 12 months:

Testator’s Family Maintenance Act 1906 s 3(9). In 1922, the New Zealand court had unlimited power to extend time: Family Protection Amendment Act 1921–1922 s 2, and this was followed elsewhere. 35.

See ACT 1929 Ord s 15; NT 1929 Ord s 15; Qld 1914 Act s 41(4); Tas 1912 Act s 10A(2); WA 1920 Act s 14(1).

36.

Qld Act s 41(8).

37.

Part IV of the Victorian Act was introduced by the Wills Act 1997, as amended by the Miscellaneous Acts (Omnibus No 1) Act 1998, and came into operation on 20 July 1998.

38.

Schmidt v Watkins [2002] VSC 273; MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318; McKenzie v Topp [2004] VSC 90; Iwasivka v State Trustees Ltd [2005] VSC 323; Unger v Sanchez [2009] VSC 541. See also Harris v Bennett (No 3) (2004) 8 VR 425 at 432 where it was said that ‘[t]he approach generally adopted to such applications by the courts prior to the 1997 amendments continues to be appropriate’.

39.

Former spouse or domestic partner. See s 90, ‘eligible person’, (e).

40.

Justice Legislation Amendment (Succession and Surrogacy) Act 2014 s 90, ‘eligible person’, (g).

41.

Ibid, s 90, ‘eligible person’, (h).

42.

Ibid, s 90, ‘eligible person’, (j).

43.

Ibid, s 90, ‘eligible person’, (k).

44.

See, generally, Chapter 2. Some of the leading cases are Privy Council decisions, for example Re Allardice; Allardice v Allardice [1911] AC 730; Bosch v Perpetual Trustee Co [1938] AC 463. In Australia, leading cases include Re Sinnott [1948] VLR 279; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 (hereafter Scales’ case); White v Barron (1980) 54 ALJR 333; Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 53 ALJR 249 (hereafter Hughes v NTE&A); Singer v Berghouse (1994) 181 CLR 201; 68 ALJR 653; 18 Fam LR 94; and, more recently, Vigolo v Bostin (2005) 221 CLR 191.

45.

Although any application of inflexible rules has been rejected in recent years: see 2.23.

46.

‘Testator’s Family Maintenance in England’ (1941) 15 ALJ 198.

47.

Evidenced by the lex Falcidia referred to in 1.2.

48.

The first Canadian legislation in this area was Saskatchewan’s Devolution of Estates Act 1909: see Feeney, p 193.

[page 8]

2

Approach to Claims Generally Introduction

2.1 As the modern law of family provision had its genesis early last century, it is understandable that its principal focus was addressing the issue of a testator’s failure to provide adequately for his wife and children. Although, in all jurisdictions except Victoria (initially),1 a widower was also granted the right to make a claim against his wife’s estate, such claims have been far less common than claims by widows.2 Claims in intestate estates were first allowed in New South Wales in 1938 and may now be made in all jurisdictions.3 The principles are identical to those applicable to testate estates, the basis of the claim being that the deceased has not made proper provision for the maintenance and support of the applicant. It follows that the description of applications in this area as ‘testator’s family maintenance’ applications is no longer apposite. Although the term ‘family provision’ is now used to describe these applications, even that term does not reflect the most recent trend, in a number of jurisdictions, to allow certain ‘dependants’ and others to make a claim.4 Nonetheless, it is the better term in

our view and is used, as appropriate, in the text. Similarly, the expression ‘family’ of the deceased is sometimes used to refer generally to those who are eligible to make a claim against the estate of the deceased. We have endeavoured to refer to a ‘deceased’ rather than a ‘testator/testatrix’ and a ‘personal representative’ rather than an ‘executor/executrix’ or ‘administrator/administratrix’. However, where use of the specific terms is necessitated by the context of the discussion, we have used the traditional ‘testator/executor’ terminology. [page 9]

Requirement to provide ‘adequate’ and ‘proper’ maintenance 2.2 As indicated above, this area of the law has been developed to address those circumstances where an eligible applicant5 has not been provided with ‘adequate’ and ‘proper’ maintenance from the estate of a deceased. The words ‘adequate’ and ‘proper’ are used in the legislation of all jurisdictions, to describe the maintenance required. Like need,6 they are considered to be relative terms and must be applied in a relative sense to all the circumstances of the case.7 The court is required to make such provision as it considers ought to be made for the maintenance, support, education or advancement in life of an eligible applicant, having regard to the circumstances at the time the court is considering the application. As will be seen from the comparisons below, the description of what must be provided for is more extensive than ‘maintenance’.

In Queensland, Tasmania and Victoria, provision is for ‘maintenance and support’, while in the Australian Capital Territory, New South Wales, the Northern Territory and South Australia, ‘support’ is, in effect, replaced by ‘education’ and/or ‘advancement’ or ‘advancement in life’. Western Australia alone incorporates all of the descriptors referred to above. Descriptions of what may be provided for in each jurisdiction ACT

s 8(2)

NSW

s 59(2)

NT

s 8(1)

Qld SA

s 41(1) s 7(1)

Tas Vic WA

s 3(1) s 91(3) s 6(1)

‘maintenance, education or advancement in life’ ‘maintenance, education or advancement in life’ ‘maintenance, education and advancement in life’ ‘maintenance and support’ ‘maintenance, education or advancement’ ‘maintenance and support’ ‘maintenance and support’ ‘maintenance, support, education or advancement in life’

The Queensland Law Reform Commission noted in its Working Paper on Uniform Succession Laws: Family Provision Paper 47 (1995) that ‘Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.’ [page 10]

The phrase ‘advancement in life’ has a wide meaning and application.8 It goes beyond maintenance and may extend to a capital payment designed to set a person up in business or upon marriage9 or to pay for retraining.10 In McCosker v McCosker11 it was held to be wide enough to cover the provision of capital for a poultry farming business for the applicant. In Smilek v Public Trustee12 it was considered as covering additional provision for the applicant’s retirement. For a discussion of relevant cases on the meaning of advancement in life see Aubrey v Kain.13 Clearly the phrase ‘advancement in life’ encourages the court to look at the applicant’s needs in a broad sense. The lifestyle that the applicant has enjoyed is a relevant circumstance.14 Additionally, future possibilities or contingencies may be taken into consideration in determining the provision that should be made.15 As to the effects of inflation and taxation in large estates, see 3.5. In Scales’ case,16 the Chief Justice of the High Court, Sir Owen Dixon, said that the words ‘adequate’ and ‘proper’ must each be given their value. Proper maintenance and support must be relative to the applicant’s age, gender, condition, mode of life and situation generally. What is adequate must be relative to the applicant’s needs but, also, to his or her own capacity and resources for meeting them. Similar views can be found in much earlier cases.17 Finally, adequate provision is not to be ascertained by considering what the applicant might have received on intestacy18 or by ordering [page 11] an aliquot share19 or a legacy20 nor by making an entirely

objective assessment, in monetary terms, of assumed needs.21 Regard must be had to the pre-existing conditions of the applicant.22 The measure to be applied is not what has been given to another, but what the applicant needs for his or her proper maintenance, giving due regard to all the circumstances of the case.23 As was said in Cooper v Dungan:24 [E]quality may be equity but in this jurisdiction equality is not in itself an aim and to seek to attain it may well indicate that the discretion exercisable in this statutory jurisdiction has miscarried.

In New South Wales it has been suggested that s 59(1) of the NSW Act involves ‘a subtle change of emphasis’ compared with the wording of the repealed NSW 1982 Act (s 9(2)) and that the current NSW Act ‘widen(s) the discretion vested in the court’. Further, s 60(2) of the NSW Act provides an ‘expanded list of permissible considerations’ for the court’s consideration when determining whether to make a family order and the nature of the order. Section 60(2) identifies 15 matters plus a further direction that the court may take into account ‘any other matter (it) considers relevant, including matters in existence at the time of the deceased’s death or at the time the application is being considered.’ The ‘multiplicity of factors’ identified ‘gives greater direction to the courts and … invites consideration of a broader range of factors than were formerly considered.’ Thus, in New South Wales the words ‘proper’ and ‘adequate’ must now be looked at through the prism of ss 59 and 60 of the NSW Act.25

Applications a two-stage process 2.3 Australian courts, particularly the High Court, have for many years drawn attention to the fact that determining family provision claims involves a two-stage process; that is, deciding whether the applicant has been left without adequate provision for his or her proper maintenance and support (sometimes

referred to as the jurisdictional question)26 and, if the answer is ‘yes’, deciding what provision ought to be made.27 [page 12] At the first stage, various factors must be considered. The most important are usually described as ‘need’ and ‘moral claim’, which are discussed at 2.4. In the High Court in Hughes v NTE&A28 Gibbs J (with whom Mason and Aickin JJ agreed) said of the first stage:29 [T]he question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances — that is, on all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts.

In Wilson v Wilson30 the Western Australian Full Court looked at this process. Of the jurisdictional question, Rowland J said that the answer will, to some extent, often depend on the needs of the applicant. While it is largely a question of need, there are other factors. Seaman J said that the jurisdictional inquiry is ‘as to the need of [the adult son] for maintenance …’. Owen J considered that the jurisdictional question required a consideration of need and moral claim. In light of the repeated statements in the High Court that the jurisdictional question must be answered having regard to all the circumstances of the case, only Rowland J appears to be consistent with current thinking on this point in the High Court. To concentrate solely on need, or on need and moral claim, is to narrow the scope of the inquiry. There is no authority for such a narrowing. Recent comments of the High Court on this issue were made in Singer v Berghouse.31 In the majority judgment, their Honours said:

The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard,

[page 13] amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

Their Honours went on to say that:32 the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge at the date of hearing.

In deciding the jurisdictional question, the court looks at all the circumstances of the case, including need and moral claim, in an objective manner and makes a finding of fact that adequate provision has or has not been made for the applicant. Once the jurisdictional question has been answered affirmatively, the second stage of the process begins; that is, deciding what provision ought to be made. There are no guidelines or mathematical formulae that can be used to assist in this task. However, decisions made by other courts on roughly similar fact situations may be of assistance and it is for this reason that case tables have been provided in this text. Of course they cannot be expected to solve the problem of deciding what provision ought to be made in a given case. This will always be a matter for judicial discretion. The use of an average percentage from the case tables as the basis for a submission on quantum was described in one case as ‘somewhat artificial’33 and in another as ‘unhelpful’.34 We agree. The case tables were never intended for this purpose. We regard them as helpful at the mediation or case

appraisal stage and helping to settle claims at an early stage but not helpful as the basis for a submission on quantum in court. Whether the two-stage process still applies in New South Wales is a matter of some debate. One judge has expressed the view that the language of the Succession Act is not consistent with the twostage inquiry which was a common feature of earlier legislation.35 Allsop P, while noting that ‘the expression of the task in s59 is subtly different from previous legislation’, expressed the view that ‘[w]hether the process engaged in by the court in s59 can still be described as “two-staged” … may be an analytical question of little consequence’.36 Barrett JA considered that the two-stage approach ought to be [page 14] adhered to.37 The debate has not been resolved, notwithstanding there have been more than a few cases before the NSW Court of Appeal since 2012.38 Beazley P has asserted that while ‘there remains some uncertainty as to whether the legislation requires a two-stage approach, it is settled that the determination under the legislation on either approach, includes an evaluative judgment.’39 In Poletti v Jones Basten JA explained that he meant that the legislation no longer dictated a two-stage approach, not that there might be cases where that approach was the preferable way to proceed.40

Applicant’s need and moral claim 2.4 For many years, the key loci in family provision applications have been the need of the applicant and the applicant’s moral claim on the estate of the deceased in order to

establish the jurisdiction of the court to grant relief.41 In Re Bodman,42 it was suggested that ‘need’ had priority over ‘moral claim’; that is, the applicant must first establish ‘need’ and then ‘moral claim’ would be considered. In Re Elwell,43 the Queensland Full Court rejected this proposition. It said:44 [I]n determining whether there is jurisdiction to interfere with the terms of the testator’s will the two [that is, need and moral claim] must be looked at in globo, if it is necessary to consider both having regard to the circumstances of the case.

The New Zealand Court of Appeal has expressed a similar view in Re Harrison,45 where Gresson J said:46 The ‘need’ of an applicant, or rather his or her needs — the plural form is I think preferable — cannot be considered in vacuo. What has to be assessed are the merits of the claim having regard to the applicant’s circumstances as at the date of the death of the testator; relations between the testator and the applicant in the past; and the extent of his estate and the strength of other claims.

[page 15] While a consideration of the applicant’s ‘need’ cannot be regarded as the primary or dominant consideration in an application,47 it will not be successful where there is an absence of ‘need’. Similarly, an application based solely on an alleged breach of ‘moral duty’ will fail.48

Need 2.5 Like the terms ‘adequate’ and ‘proper’,49 ‘need’ must be understood also in a relative sense.50 It is not necessary for an applicant to demonstrate that he or she is destitute51 and thus the concept of moral claim or duty is not confined to such cases. Even if community expectations are substituted for moral claim or duty, the result is likely to be the same. In Bosch’s case52 the Privy Council observed that ‘[t]he amount to be provided is not to be

measured solely by the need of maintenance’. As the New Zealand Court of Appeal has stated:53 [I]t must be shown that in a broad sense the applicant has need of maintenance and support. But an applicant need not be in necessitous circumstances: the size of the estate and the existence of any other moral claims on the testator’s bounty are highly relevant …

Cases involving large estates54 strikingly illustrate the principle that ‘need’ is relative. In most, if not all, such cases, it would be difficult [page 16] to describe the applicants as being in need in anything other than a relative sense.55 Clearly, provision is not limited to bare subsistence.56 Similarly, ‘need’ is not limited to immediate need. Contingencies may be taken into account. Some examples of contingencies that have been or may be taken into account appear in 3.5 (large estates — the larger the estate, the more amenable the court is likely to be in providing for contingencies), 4.25 (infant children) and 4.31 (married daughters). For a comprehensive discussion of ‘need’ in the context of what is ‘proper provision’ see Sadiq v NSW Trustee & Guardian.57

Moral claim 2.6 The terms ‘moral duty’, ‘moral claim’ and ‘moral obligation’ are not commonly found in the legislation, but there are examples in the New South Wales, Victorian and New Zealand Acts.58 However, from the earliest years,59 the courts considered the concept of moral claim or moral duty as relevant in this

jurisdiction. They considered the legislation as directing them to a key question: had the testator breached his or her moral duty or obligation to provide for the applicant? This approach has been regarded as a gloss on the statute, but nonetheless useful.60 The terms have also been described as a convenient shorthand expression covering somewhat lengthier legislative prose.61 [page 17] In more recent years, attempts have been made to discourage courts from using terms such as ‘moral duty’ and ‘moral obligation’ in family provision judgments.62 The reason put forward is that the legislation does not require establishment of a breach of moral duty before an order can be made63 and, in the case of New South Wales, such concepts might confuse the focus of attention afforded by ss 7 and 9 of the NSW 1982 Act (now ss 59 and 60 of the current NSW Act).64 However, discouragement of the use of these terms has received a mixed reaction. A moral duty was said to be owed to the applicant in Newnham v Tarbert65 and MacGregor v Hunter.66 In Benney v Jones,67 Priestley JA said the word ‘ought’ in s 7 of the NSW 1982 Act68 means that an eligible person must show a moral claim on the estate before an order can be made, and is the same as saying that the deceased must have had a moral obligation to that eligible person. In Permanent Trustee Co Ltd v Fraser,69 Handley JA thought the concept of moral duty was a useful yardstick and saw no reason not to use it; Sheller JA preferred the phrase ‘what is right and appropriate’;70 and Kirby P thought the words ‘moral duty’ and ‘moral obligation’ should not be used.

In South Australia,71 Victoria72 and Western Australia,73 use of the terms ‘moral obligation’ and ‘moral duty’ has been accepted as valid by their Courts of Appeal. The value or usefulness of these concepts was recently considered by the High Court in Vigolo v Bostin.74 The majority of the court was of the view that the concepts had relevance.75 Accordingly, in our view, use of these terms in applications is not inappropriate. [page 18] The terms are, of course, opposite sides of the same coin. The deceased is said to be under a moral duty to provide for his or her family76 and the family in turn has a moral claim on the deceased’s estate if the deceased breaches his or her moral duty.

Contribution to the building up of the deceased’s estate 2.7 The applicant’s moral claim is significantly enhanced by factors such as helping in the building up of the deceased’s estate77 or helping the deceased in other ways.78 Some specific examples are indicated in item 12 of the checklist in Appendix II. Under the NSW Act, the court is expressly required, when considering whether to make a family provision order and the nature of the order, to have regard to, inter alia, any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person … for which adequate consideration … was not received by the applicant.79

Relationship between the applicant and the deceased 2.8 A consideration of the quality of the relationship between the applicant and the deceased is an element in the cases and, in our view, its relevance is in the context of ‘moral claim’. Cases such as Re Harrison80 specifically refer to the relevance of ‘relations between the testator and the applicant in the past’ in considering the merits of any applicant’s claim.81 However, only very good or very bad relationships seem to affect the outcome; and, where it would seem that a bad relationship82 is the fault of the deceased, the relationship factor is generally irrelevant. An order was made in a bad relationship case where there was fault on both sides in Trumbull-Ward v Michell & Haley.83 Most recently, the view has been expressed that a moral claim arises simply out of the applicant’s relationship of consanguinity to the [page 19] deceased.84 In our view, this opinion is unlikely to gain acceptance. It is at odds with the basis upon which these applications have been considered since the genesis of this jurisdiction.85 Under the NSW Act, the court is expressly required, when considering whether to make a family provision order and the nature of such an order, to have regard to, inter alia, any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship.86

Adult children as claimants 2.9 General observations that may be seen as relevant to claims by adult children were stated in a series of cases in New South Wales by Hallen J.87 These observations have been adopted by other judges in New South Wales and Victoria88 and are likely to be useful in other jurisdictions. His Honour’s observations have changed slightly over the years. The following have been taken from Chapman v Ingold89 but with case citations omitted. 1.

The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

2.

It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the

[page 20] community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. 3.

Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child’s life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute.

4.

If the applicant has an obligation to support others, such as a parent’s

obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons. 5.

There is no need for an applicant adult child to show some special need or some special claim.

6.

An adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased.

7.

An applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim.

As useful as these statements are, they can do no more than give assistance and provide guidance; they should not be elevated to rules of law.90 [page 21]

Estrangement Estrangement between the applicant and the deceased 2.10 In the early years of this legislation, cases involving estrangement were few and far between. For example, from 1900 to 1975 there were only two reported cases where this was an issue.91 Over the next 25 years there were only nine reported and unreported cases of which the writers are aware. Little could be deduced from these cases, except that estrangement substantially reduced the quantum of orders made. Since the last edition there have been numerous estrangement

cases (all unreported) and the relevance of the issue has now been considered in depth. It is remarkable that in one decade of the twenty-first century there were three times the number of cases involving estrangement than in the previous century. In Palmer v Dolman92 Ipp JA said that: [T]he mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.

In Wheatley v Wheatley93 Bryson JA referred to his previous decision in an unreported case of Wentworth v Wentworth in 1991 in which he said: I do not regard a state of estrangement or even hostility as necessarily bringing an end to any moral duty to make provision for an eligible person, whether wife, son, daughter or other. When there is an estrangement the application of s 7 requires that it should be appraised and its causes should be considered. A long-standing severance of a relationship with a parent, or even a clearly-established termination of all communication is not in the present age regarded as necessarily putting an end to moral duty; it may do so, but whether it does calls for appraisal in each case and is not reduced to a clear principle.

His Honour said the Court of Appeal did not adversely comment on that view when that case went on appeal. His Honour also drew attention to recent cases where long periods of hostility or estrangement did not prevent successful applications. The other members of the court agreed with Bryson JA’s reasons. In the appellate case of Foley v Ellis,94 a daughter wrote a note a few years before her marriage which the testatrix (her mother) and her father read. It said that living with her parents was like living in Dachau concentration camp. In fact her grandparents had been imprisoned in Dachau and the letter was particularly hurtful to her parents. In later [page 22]

Family Court proceedings between this daughter and her husband, the testatrix swore an affidavit in which she said she was estranged from this daughter. Sackville AJA said:95 The more recent authorities have held that a state of estrangement or even hostility between a testator or testatrix and a claimant does not terminate the obligation of the testator or the testatrix to provide for the claimant.

This suggests that estrangement may reduce provision to be made by the court but no mention is made of the possibility that it might extend to dismissal of the claim. In fact, there have been several cases where the estrangement has been considered so grave that the claim was dismissed.96 In the light of these cases and the obiter in the appellate cases referred to above, it will be seen that dismissal is not the normal result where there has been an estrangement, but it does happen in special cases. In Foley v Ellis97 Sackville AJA also made the interesting comment that: Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of the raw emotions experienced at the time. The ‘wise and just’ testator or testatrix … must be taken to understand this.

Clearly, the court’s attitude to any alleged estrangement may not be the same as that of the litigants before it. What the litigants regard as serious or very serious may well be regarded as less serious or even minor by the court. Where there is fault on both sides, with perhaps a preponderance on the deceased’s side, orders may be higher than where the fault is wholly that of the applicant.98 [page 23] For the sake of completeness, it must be observed that there are

also cases involving estrangement that could easily have been dismissed because of the depth of such estrangement but were dismissed on other grounds.99 Allegations of sexual abuse are commonly found in estrangement cases.100 Their purpose is, generally speaking, to shift the blame for the estrangement onto the deceased, thus improving the prospects of success for the applicant. Such allegations have a very poor track record in achieving this objective. In most cases, the court is either not in a position to make a finding,101 regards them as irrelevant,102 or regards them as unproven.103 Even when such allegations are regarded as validly made, they may have little or no bearing on the final order. For example, in Bentley v Brennan104 the deceased was held not to have had responsibility to provide further for the applicant, and in Cameron v Cameron105 the allegations were not seen as particularly relevant to the case. In Andrew v Andrew106 it seems that a further feature of significance in an estrangement case is whether or not the estrangement was accompanied with ‘hostility’. The majority judgments draw a distinction between the fact of estrangement on the one hand and hostility or overt hostility on the other.107 It is true that in some estrangement cases ‘hostility’ has been overlooked if not ignored by the court.108 Perhaps this type of case may emerge as another category of cases involving estrangement. A study of cases involving estrangement reveals recurring features that appear to have influenced the court’s final decision, but they do not establish any principle or rule. [page 24] Where the estrangement has been largely caused by the

applicant, has been of substantial duration and where no reconciliation has occurred at the date of death, any provision likely to be made will be a modest one. In fact, in the New South Wales Court of Appeal case of Wentworth v Wentworth,109 Powell JA stated specifically that ‘orders in these circumstances should be modest’.110 Examples of orders made in cases broadly falling within this category are given in Table 2.1.

Table 2.1

Estrangement caused by applicant % of estate ordered 3–4

1

Re Joliffe [1929] St R Qd 189

2

Gorton v Parks (1989) 17 NSWLR 1

3

Wentworth v Wentworth (1995) 37 NSWLR 703

4

Browne v Macaulay [1999] WASC 208

5

Fielder v Brooker [2001] NSWSC 981

6

Rowley v Bouwmeester [2005] TASSC 34

7

Wheatley v Wheatley [2006] NSWCA 262

8

Diver v Neal [2009] NSWCA 54

9.6

9

Wall v Crane [2009] SASC 382

16.6

10 O’Donnell v Gillespie [2010] QSC 22

4.05 (A1) 2.7 (A2) 4.7 8.75 4.3 5 11.5*

5.38

* The absence of any competing claims was another factor in this case. The estrangement may have been caused by the deceased and

reconciliation was simply not possible in the deceased’s lifetime. In such cases the court is likely to give no weight to any allegation of estrangement. Cases of this type are set out in Table 2.2.

Table 2.2

Estrangement caused by deceased % of estate ordered 22.9

1

Kleinig v Neal (No 2) [1981] 2 NSWLR 532

2

Boykett v Boykett (1998) ACL Rep 395 WA 4

3

Riches v Holdman [2001] WASC 21

4

Rhodes v Pounsberry [2003] NSWSC 636

30.4

5

Green v Holtom [2006] WASC 1

50.5

6

Whitmore v Poole [2006] NSWSC 85

19.9

21.6 25

[page 25]

7

Lee-James v Mayer [2006] WASC 224

8

Eather v Maher [2006] NSWSC 746

9

Curran v Duncan [2006] WASC 9

10 Sikorski v Michalowski [2007] NSWSC 666 11

Lathwell v Lathwell [2007] WASC 83 (four

% of estate ordered n/c 27 (A1) 32.4 (A2) 30 30.1 20 each

applicants) 12 Sprowles v Bertoldo [2007] NSWSC 1255 13

Kay v Archbold [2008] NSWSC 254

62.3 77

14 Smith v Public Trustee [2009] NSWSC 268

61.9

15

Fricano v Lagana [2009] NSWSC 840

65.4

16

Leyden v McVeigh [2009] VSC 164

17

Doddridge v Badenach [2011] TASSC 34

18 Valentini v Valentini [2014] VSC 91 19

Magur v Brydon [2014] NSWSC 1932

20 Lado Causillas v NSW Trustee & Guardian [2015] NSWSC 1204 21 Wright v Wright [2016] QDC 74 22 Parker v Australian Executor Trustees Ltd [2016] SASC 64

Table 2.3

50 32.6 25 (A1) 5 (A2) 25 (A3) 43.6 30 (A1) 30 (A2) 24.3 (A1) 21.3 (A2) 4.43 (A1) 10.34 (A2) 8.86 (A3) 8.86 (A4) 10.93 (A5)

Fault on both sides

1

Barrass v Kaine [1999] NSWSC 245

2

Palmer v Dolman [2005] NSWCA 361

% of estate ordered 13 13.1

3

Pelissier v Melville [2006] NTSC 93

4

Foley v Ellis [2008] NSWCA 288

5

Howe v Lowry [2009] NSWSC 451

33.5

6

Miller v Warren [2009] WASC 115

16.7

7

Kennard v Sheehan [2010] NSWSC 882

18.2

8

Matthews v Wear [2011] NSWSC 1145

19.3

9

Greely v Greely [2011] VSC 416

13 17.85

18.8 (A1) 13.9 (A2) [page 26]

10 Keep v Bourke [2012] NSWCA 64 11

Courtney v Powell [2012] NSWSC 460

12 Hartnett v Taylor [2014] VSC 427 13

Poletti v Jones [2015] NSWCA 107

% of estate ordered 28.2 9.9 (A1) 19.7 (A2) 33.3 (A1) 33.3 (A2) 15 each

14 Di Mauro v Sciara [2015] NSWSC 1796

8

Where there has been a reconciliation, particularly in the period shortly before death, orders tend to be what they would have been had there been no estrangement. Examples are given in Table 2.4.

Table 2.4

Estrangement but subsequent reconciliation

% of estate ordered 18.1

1

Cooper v Dungan (1976) 50 ALJR 539

2

Re Marchi (SC(Qld), OS 22/85, Townsville, Kneipp J, 12 November 1987, unreported)

3

Walsh v Perpetual Trustee Co (1992) ACL Rep 395 VIC 15

27.1

4

Armalis v Kasselouris [2006] SASC 198

50

5

Menczer v Menczer [2009] NSWSC 1466

14.7

6

Henry v Northern [2013] NSWSC 1843

42.9

30

It will be seen that where estrangement has been alleged by any party, it is vital for the parties’ legal advisers to ascertain how serious it was, who caused it and whether there was a reconciliation at any time and if so, when.

Deceased’s influence on applicant’s lifestyle 2.11 Another circumstance which may give rise to a moral claim by the applicant can be the influence of the deceased on the lifestyle of the applicant. In Re Adams,111 an adult son commenced a university course with the testator’s support. Shortly before he died, the testator had a change of heart (not attributable to the son), ceased to support him and altered his will to make no provision for him. In the circumstances, the son was held to be entitled to an order that he receive an amount sufficient to support him adequately until he completed his course.

[page 27] In NSW, the court is expressly required to consider whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so.112

Relevance of the applicant’s conduct in reducing a moral claim 2.12 Where there is conduct disentitling on the part of the applicant, his or her moral claim may reduce depending on the nature of the conduct. As was said in Hughes v NTE&A:113 ‘The stronger the applicant’s case for relief the more reprehensible must have been his conduct to disentitle him to the benefit of any provision.’114 This matter is discussed further in 2.34–2.44.

Competing claims Generally 2.13 ‘Need’ and ‘moral claim’ are regularly considered in the context of competing claims, as shown by the remarks referred to in 2.4. When looking at the deceased’s moral duty to persons other than the applicant, the court will take into consideration the claims of those persons who are eligible to apply under the legislation.115 In our view, the same principle should apply when considering ‘need’. Obviously, if the estate is insufficient to meet all the claims upon it, all the court can do is see that the available

means of the deceased are justly divided among the persons who have such claims.116

By charities and/or strangers 2.14 The mere fact that the whole or the bulk of the estate was left to charity and/or strangers is of little consequence in itself. The court is not necessarily more generous to adult applicants in these cases than in others (as is often thought). Applicants have received the [page 28] whole estate,117 more than half the estate,118 half the estate,119 and a small share.120 In some cases the applicant has received nothing.121 A substantial but unquantifiable share was ordered in Pata v Vumbuca.122 In that case it was observed that there was no evidence of any contact between the deceased and the three charities to whom she left the bulk of her estate. Whether the result would have been different if there had been contact between them is a matter for speculation only. Clearly the strength of the individual claim determines the nature of the order.

Relevance of support or benefits received by applicant or beneficiary 2.15 The court is not limited in any way by the provision made for the spouse and children by a deceased during his or her lifetime. It is, for example, no answer to a claim by a spouse or child for further provision that the deceased, while alive, chose to

treat the family harshly even though he or she had sufficient assets to do much better. As Salmond J said in Welsh v Mulcock123 when commenting on a testator: ‘[H]e cannot, by failing in his duty to them while alive, reduce the standard of his testamentary obligations towards them on his death.’124 The argument that no order should be made because an applicant’s financial position improved because of the applicant’s receipt of a government pension after the deceased’s death was rejected in Re Elliott.125 In that case, an annuity of 15 shillings per week was ordered. Clearly, the pension which the applicant received was taken into account in making the order. [page 29] On the other hand, benefits given to an applicant by the deceased during his or her lifetime126 or given indirectly,127 are taken into account in determining what is adequate provision for that applicant. Benefits or property received by an applicant from a source other than the deceased are also taken into account in making an order.128 Similarly, benefits given to beneficiaries by the deceased during his or her lifetime are taken into account when considering the means possessed by the beneficiaries in apportioning the burden of any order among them.129

Spendthrift beneficiary 2.16 It might be thought that if the sole or major beneficiary is a spendthrift, the court will regard that beneficiary as having no competing claim. This is not so. The court does have regard to the beneficiary’s needs, even though he or she is a spendthrift.130

Effect of a pension on a claim 2.17 In New Zealand, the Social Security Amendment Act 1950 s 18(3) provided generally that, in making an order, the court must disregard any social security pension payable.131 This section was considered in Re Lawford132 and Re McGookin.133 In the former case, the Chief Justice held that s 18(3) entitled the court to take into account benefits not referred to in the section. These benefits included superannuation benefits, a miner’s benefit and a family benefit.134 In the latter case, it was held that the subsection meant no more than that the court was required to disregard any pension or pension entitlement as part of an applicant’s income, but the court could take into account the effect of any particular order on that pension entitlement.135 Section 18(3) of the 1950 Act did not survive into the Social Security Act 1964 (NZ), although a similar provision now appears in s 13 of the Family Protection Act 1955 (NZ). [page 30] In Re Drager,136 it was argued that Re McGookin was authority for the proposition that a social security pension should be taken into account in making an order. This argument was rejected. In view of the clear words of s 13 of the New Zealand Act, there can be no doubt that, in New Zealand, social security pensions must be disregarded. Accordingly, while these cases are still relevant in New Zealand, in other jurisdictions, the question must be decided on general principle. That principle may be stated in terms of two propositions: the primary question of whether a deceased has failed to make adequate provision is determined by the

circumstances existing at the date of death; however, in making an order, the court takes into account the circumstances existing at the date of the order.137 In Australia, conflicting views have been expressed. Without deciding the point, it was said in Re Barrot138 that a widow’s pension entitlements should be taken into account when making an order. This approach was adopted in Re Beard139 on the basis that it was a fact existing at the time of the order and support for this decision can be found in Chapman v Elder’s Trustee & Executor Co.140 These views were adopted and applied in Re Pope.141 In the English case of Re Charman142 a pension was taken into account in making an order, with the result that it effectively nullified the claim. The receipt of a pension also seems to have been taken into account in making an order in Re Elliott.143 However, in Shah v Perpetual Trustee Co,144 an opposite view was held, but no reference was made to the above cases. This case was followed by the Western Australian Full Court in Bondelmonte v Blanckensee.145 Again, cases to the contrary were not cited. In Parker v Public Trustee,146 it was suggested that, where the estate is small and there are a series of claimants on the testator’s bounty, it may be proper for the court to preserve a pension entitlement. In other words, there may be circumstances where a pension entitlement should be taken into account. [page 31] Most recently in Szilveszterne v Angus,147 in a claim by a second wife, it was held to be appropriate to take her pension into account. The better view seems to be that pension entitlements should

be taken into account in making an order, as this accords with the principle that facts or circumstances existing at the date of the order should be taken into account and is generally supported by authority.

Indirect benefits 2.18 Where an estate is left to (say) an applicant son’s infant children, it might be thought that the applicant could successfully argue that, as he derives no benefit from the estate, further provision should be made for him. Being infants, the children could not assign their shares or part thereof to their father even if they wanted to. Although in theory the income and, if necessary, the capital could be used for the education, maintenance or advancement of the children, in practice none might be so used because of the son’s ability to provide for his children.148 Such an argument failed in Re Baker.149 In that case, the applicant son had modest assets, a secure if not well-paid job, expected to be working until his retirement and was able to support his wife and four children. The estate was small (about £3500). Leicester J held that the son received an indirect benefit under the father’s will and dismissed his application but allowed his costs out of the estate. Obviously his Honour thought the claim had some merit. Another example of a claim being dismissed where the benefit passed to the applicant’s children is Scalone v Scalone.150 In that case the testator left the residue of his estate worth $1.1m to two of his four children and to the children of his other two children. The applicant was one of the children who received nothing. The applicant’s children were aged five and seven and were entitled to $123,000 each. The applicant was a refrigeration mechanic and owned his own business. At the date of hearing the income from

the business was about $3500 per week. The court held that the applicant was not in need, that his business was doing well and he would have no difficulty in paying off the mortgage on his home. The applicant was 34 years of age. Towards the end of his judgment Master McLaughlin said: The court must be absolutely vigilant and scrupulous in protecting and safeguarding the interests of persons, such as those infant beneficiaries, who are not capable of protecting their own interests.

In the above cases, the adult children were able to support themselves and their families. The position was quite different in Wilson v Public [page 32] Trustee151 where the deceased had left all but $300 of a $167,000 estate to her daughter’s children and grandchildren (that is, to her grandchildren and great grandchildren). Two of her daughter’s children were minors. The applicants, a son and daughter, had a very difficult childhood through no fault of their own and they were for all practical purposes destitute. Both lived on government pensions. Their application was successful. Each received an order for $60,000. Another example of a successful application is Menczer v Menczer152 where most of the $1.5m estate was left to the deceased’s grandchildren. The last will was made at a time when the deceased was in poor health. The applicant daughter, also in poor health and living on a pension, received an order for $220,000 in addition to the $97,000 she was entitled to under the will. In Contencin v Tasmanian Perpetual Trustees Ltd,153 a son and daughter were successful when almost the whole of a $640,000 estate was left to a two-year-old grandchild. A final example is Campbell v Hemmings,154 where the estate was left to great grandchildren. A daughter had a need for better

accommodation, further education, a motor vehicle, some household goods and a buffer against misfortune. The court met that need with an order for $350,000 out of an $830,000 estate. Clearly an adult child’s application will not necessarily fail where the sole or principal beneficiaries are the adult child’s children because the applicant is pro tanto relieved of the expense of providing for them. However, they do suggest that success will depend on an applicant being able to persuade the court that he or she is otherwise entitled to an order.155

Where court not advised of beneficiary’s financial position 2.19 It is usual for beneficiaries to advise the court of their financial position and anything special about their relationship with the deceased when they and the personal representative respond to an application. The court is entitled to assume that the beneficiary has adequate resources upon which to live and has no special claim on the deceased’s bounty where he or she says nothing about either matter.156 [page 33] Another way of putting it is to say that the court assumes that the beneficiary does not wish the court to take his or her financial situation into account in deciding the questions which fall for determination.157 The financial circumstances of beneficiaries are relevant to claims under the legislation.158 The term ‘beneficiaries’ should not

be given a restrictive interpretation and includes substitute beneficiaries and persons taking on intestacy.159

The ‘wise and just’ test 2.20 The court must place itself in the position of the deceased and consider what he or she ought to have done in all the circumstances of the case, treating the deceased for that purpose as a wise and just, rather than a fond and foolish, spouse or parent.160 The application of this test clearly brings into play prevailing community views on what is wise and just treatment of a deceased’s family.161

Effect of prevailing community attitudes 2.21 It is clear that the legislative changes in this area, which have been referred to briefly in Chapter 1 and above, have reflected changes in community attitudes. However, the law governing family provision reflects prevailing community attitudes in another way: the approach of the courts in exercising their jurisdiction. The President of the New Zealand Court of Appeal neatly encapsulated the approach in Re Wilson162 when he said: The point is obvious that the Family Protection Act is a living piece of legislation and our application of it must be governed by the climate of the time.

In Re Z163 it was said that changes in the general climate of opinion since the Crewe era164 had to be taken into account in assessing a contemporary [page 34]

testator’s moral duty as regards an annuity for his widow. The same approach can be found in Re Leonard,165 where it was stated that due regard must be had ‘to contemporary social attitudes as to what should be expected of a wise and just testator in the particular circumstances’. Similar views were also expressed in Gorton v Parks,166 where it was said that the function of assessing moral duty and need must be exercised contemporaneously and that judges share, with all members of the community, access to the current moral beliefs of the community of which this legislation makes them the spokespersons. Some judges prefer using the concept of community standards or community expectations to the concept of moral duty when adjudicating claims under this legislation.167 The difficulty with community standards or expectations is that they vary widely and there is no way of knowing what they are.168 It is difficult to escape the conclusion that as a touchstone for determining the correctness of a decision, one concept is as imprecise as the other.

Implications of this approach Some older cases of limited relevance 2.22 It follows that some older cases in this area may not necessarily be followed today, not because they were wrongly decided, but because community attitudes which were reflected in the judgments have changed. On this basis, it is submitted that Scales’ case169 can be regarded as having little relevance today to claims by adult sons.170 Similarly, many cases involving claims by widows171 reflect the now discarded approach that the duty of the deceased does not extend to providing his widow with a capital sum which she

might leave at her death or to providing for her maintenance and support after remarriage. Again, the current [page 35] attitude to claims by adult daughters172 suggests that cases such as Sinclair v Sinclair173 and Re F174 would probably be decided differently today.

No inflexible rules 2.23 In recent decades, the courts have manifested a desire to avoid introducing relatively inflexible rules. In fact, it has become almost a constant theme in decisions. As far back as 1939, Lowe J said:175 One would have thought that subject to those qualifications the discretion should be left as free as the Legislature has enacted it and that the Court should not lay down rules to fetter that discretion: that to administer discretion according to rules is to destroy discretion.

In Re Elwell,176 the Queensland Full Court emphatically rejected what had appeared to be a rule that ‘need’ must be established before the question of moral claim could be considered. It held that ‘need’ and ‘moral claim’ must be looked at in globo, if it is necessary to consider both, having regard to the circumstances of the case. In other words, in determining whether adequate provision has been made, all the relevant circumstances must be considered and these circumstances include both need and moral claim. The High Court rejected the application of rigid rules in White v Barron.177 In that case, Stephen J, speaking about such rules said:178 The better course appears to me to acknowledge that in the area of testators’

family maintenance there is relatively little room for the propounding of broad judicial doctrine, old or new, at least when it takes the form of rules of purportedly general application and relative inflexibility.

Seven years later, the New South Wales Court of Appeal considered a purported rule that adult sons had to show some special claim or special need before their claim could hope to succeed. In Hunter v Hunter,179 Kirby P said such a view: limits, in an unnecessary and artificial way, the consideration of all of the circumstances of the case. It frustrates the object of the statute. It diverts attention from the focus which the Act requires

[page 36] upon the proved needs of the applicant and a comparison of those needs with the provision made by the will.

In that case, provision was made for an adult son who, through alcoholism, had become an invalid pensioner. In Blair v Blair,180 the Victorian Court of Appeal also expressed the view that it was not necessary for an adult son to show he had some special need or claim before he could succeed. For New South Wales see s 60(2)(g) of the NSW Act.

Legislation interpreted expansively 2.24 The legislation is remedial in character and must be construed so as to give the most complete remedy which the phraseology will permit.181 The courts may be said to have adopted a liberal view in the interpretation of this legislation from its very beginning.182

Court has no general power to rewrite the will

2.25 The court will alter the disposition made by a testator only so far as is necessary to make proper provision for an applicant.183 The court’s power does not extend to rewriting the will,184 although it must be conceded that the will is, in fact, rewritten to the extent of any order made.185 [page 37]

Judicial commentary on the legislation 2.26 In addition to the comments on the legislation already referred to,186 there have been a number of others which highlight how judges view their role in applying the legislation. They include the remarks by Fullagar and Menzies JJ in Blore v Lang187 that the Act is to provide maintenance, not legacies,188 and that good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court.189 In Re Allardice; Allardice v Allardice190 Cooper J said that the court has ‘no power to recast the testator’s will or to redress inequalities or fancied injustice’,191 while Wolff J in Courthope v Courthope192 commented that the court ‘should not merely satisfy any disappointment which the applicant has suffered in not getting that share to which he considers he is entitled’.193 In Revell v Revell194 Pembroke J said that ‘courts do not rewrite the will of a deceased person simply because it appears to be unfair, unequal or unwise’.

Date at which eligibility is determined 2.27 There are two possible dates on which a person’s eligibility to make a claim may be determined: the date of death or the date

on which the application is made.195 Generally speaking, the date of death is the appropriate date. However, the matter is discussed in detail in respect of applications by widows who have remarried after the deceased’s death196 and in respect of applications by children who have been adopted after the deceased’s death.197 As to the relevance of circumstances at the date of death and also at the date of the order, see 2.28.

Relevance of circumstances at date of death and date of order 2.28 Generally speaking, the primary question, whether the deceased has failed to make adequate provision for the proper maintenance [page 38] and support of an applicant, is to be determined upon the circumstances existing at the date of the deceased’s death, including circumstances which could reasonably be foreseen at that time.198 However, in making an order, the court takes into account the circumstances existing at the date of the order.199 The date of the order and not the date of death is the focus of the New South Wales legislation. Section 59(1)(c) of the NSW Act (NSW 1982 Act s 9) requires the court to determine the inadequacy of provision for an applicant having regard to the facts known to the court at the time the order is made.200 Gifts made to an applicant after the death of the deceased are taken into account.201

Effect of death of applicant 2.29 The precise status of an application where the applicant dies after the issue of the originating process but before the hearing has not been finally determined. There are three schools of thought as to the outcome of such an application: 1.

that the cause of action dies with the death of the applicant;202

2.

that the cause of action cannot be used to benefit the estate of the deceased applicant, but that it can be used to meet any debts of the applicant and costs;203 [page 39]

3.

that the cause of action survives because of the usual survival legislation.204

The result is likely to turn on whether, having regard to the actual wording of the survival legislation concerned, it can be said that a cause of action subsisted at the date of death. On one view, there is none subsisting, because a cause of action is a right enforceable by action and under the family provision legislation all that an applicant has is a hope that the court will exercise its discretion in his or her favour.205 The opposite view is that the term ‘cause of action’ should be given a wide and general meaning. According to this view, the cause arises on the issue of the originating process in a family provision application, because at that point the applicant has a statutory right to provision out of the deceased’s estate. In effect, the court’s function is to quantify that claim.206 Further support for the view against survival may be found in

the argument that the right to apply is a mere personal right. Such an argument was accepted in Coffey v Bennett,207 but in that case, since the applicant was bankrupt, the question to be answered was whether the applicant or the Official Receiver had the right to apply. It was held that it was a personal right and did not vest in the Official Receiver. Sholl J stated that cases such as Re Hawke208 and Re Shannon209 were not relevant to the question he had to decide. Coffey v Bennett was followed in Luxton v Luxton.210 In Wardle’s case,211 Zelling J considered Coffey v Bennett and Luxton v Luxton and, in so far as they treated the right to apply as a personal right, he did not consider them as concluding the question.212 [page 40] The true position seems to be that, while the right is not a property right,213 it is not a personal right either, notwithstanding statements to the contrary in Coffey v Bennett,214 Luxton v Luxton215 and McEvoy v Public Trustee.216 We agree with O’Halloran JA in Barker v Westminster Trust Co217 that it is an equitable right vested by statute. As such, the court is concerned with the enforcement of a statutory duty which does devolve to a personal representative,218 provided that the cause of action was subsisting at the date of death.219 It would seem to be essential that the claim has been filed in court for this to be the case. In Queensland it has been held that where an applicant has filed an application but dies before it can be heard, the cause of action survives for the benefit of the applicant’s estate.220 Apart from the situation in Queensland, it is not possible to express a firm opinion on the result of an application where the applicant dies before the hearing. The better view would seem to be that the cause of action does survive because of the relevant

survival legislation.221 On the basis that an applicant’s right to claim is a personal right, it has been held that, if a potential applicant dies before proceedings are commenced, the personal representative of that potential applicant cannot bring proceedings under the legislation.222 Assuming the right to claim is an equitable right vested by statute, it is vested in a living person and, accordingly, any right of a personal representative to claim on behalf of his or her deceased applicant would also have to be vested by statute. As no legislation in Australia allows this, it is difficult to see how a claim could be brought by a personal representative if his or her deceased applicant died before a claim was filed. If the claim does survive, the court can take the death into account as a contingency affecting the deceased’s duty which, as the court now knows, has been resolved. It then may use that decided contingency in evaluating whether the deceased failed in his or her duty to make [page 41] adequate provision for the claimant and, if so, how much should be allowed. Where a conditional settlement has been reached subject, inter alia, to obtaining an order of the court and the applicant dies before the conditions have been satisfied, an order will be refused.223 As to costs orders in these cases, see 10.16.

Quantification of a claim after death of applicant

2.30 Various methods of quantifying claims have been suggested in several cases.224 The clearest statement on the subject is that in Re Findlay,225 where it was said that ‘the Court, except in exceptional cases, should limit the provision made to a suitable amount with reference to the period between the date of the testator’s death down to the date of the death of (the applicant)’. Table 2.5 digests cases where the applicant died after issuing proceedings but before the hearing. It will be seen from the table that the amount normally awarded is very small, but it does at least allow the estate of the deceased applicant to obtain costs. [page 42]

[page 43]

Death of an applicant after an order has been made

2.31 Where the court makes an order in favour of an applicant by way of payment of a lump sum and, the personal representative having paid part of the order, the applicant dies before the final payment is made, the personal representative can apply to the court for variation of the order. In an appropriate case the balance of the amount ordered will be cancelled.226

Effect of age of applicant 2.32 Although not explicitly the subject of judicial commentary, age is clearly a relevant factor in all applications. In particular, applications by infant children227 involve different considerations to those of adult sons228 and daughters.229 In the case of applicants of advanced years, provision may be required to cover special medical care, including motorised wheelchairs, scooters, stair lifts and the like, which are rarely necessary for younger applicants. One special feature arises where applicants reside in nursing/convalescent homes. These applicants often have serious health problems affecting their normal life expectancy. The special life expectancy table in Length of stay in Australian nursing homes230 may be of relevance in these cases.

Effect of bankruptcy of applicant 2.33 For the purposes of bankruptcy law, a person’s right to apply for provision has been regarded as a personal one which does not vest in the Official Receiver231 (now the Official Trustee).232 In Poesch v Grosvero233 it was held that a claim is not a chose in action and does not vest in the trustee in bankruptcy. As discussed in 2.29, in our view it is more correctly characterised as

an equitable right vested by statute. However, if the applicant obtains an order, and money or property [page 44] comes to him or her thereunder in a form that the Official Trustee can reach, the latter may claim upon it.234 On the other hand, there appears to be no reason why the court, in the exercise of its discretion, cannot make an order that capital is not payable until the bankruptcy is concluded.235 In fact, it may be argued that to order otherwise defeats the purpose of the family provision legislation. In Collicoat v McMillan,236 where the applicant was an undischarged bankrupt, it was held that the court should have regard to whether, once the creditors are paid out, there would be something left over for the applicant. An order would not normally be made if the applicant would not receive any benefit from it but an order might be considered if the position were otherwise. For an interesting case concerning the effect of a family provision order on a bankrupt beneficiary, see Official Receiver in Bankruptcy v Schultz.237

Conduct disentitling Legislation 2.34 Legislation in all jurisdictions in Australia, except the Australian Capital Territory, New South Wales and Victoria, provides that the court may refuse to make an order in favour of a person whose character or conduct is such that, in the court’s

opinion, the applicant is disentitled to an order.238 In the Australian Capital Territory and New South Wales, the character and conduct of the applicant (referred to in the legislation as ‘the eligible person’) is a factor to be taken into consideration by the court in determining what provision, if any, ought to be made.239 In Victoria, the court must have regard to the character and conduct of the applicant or any other person when making provision under the Act.240 In New South Wales, the character and conduct of the applicant and the conduct of any other person before and after the death of the deceased person are matters for the court’s consideration.241 [page 45] Although the wording is different in these three jurisdictions, the result would appear to be the same as elsewhere. Whether conduct disentitling is an independent ground for refusing an application or whether it goes to negating the existence of any moral claim by the applicant242 is unclear. Wenn v Howard243 raised but did not answer this question. However, what the legislation does is stress that character or conduct disentitling is a factor that must be taken into consideration by the court and that evidence relating to such character or conduct, if it exists, should be placed before the court. Clearly, where the character or conduct is held not to amount to character or conduct disentitling, the court may still take it into account and may reduce the amount which might otherwise have been awarded to the applicant.244

Relevance of prevailing community attitudes

2.35 As mentioned in 2.21, the approach of the courts in exercising their jurisdiction reflects prevailing community attitudes. This approach applies as much to what constitutes character or conduct disentitling as to the other areas of family provision law. It will be noted that virtually all reported cases involving this area predate the current family law regime in Australia. Matters such as adultery and desertion, which figure prominently as conduct disentitling, are no longer matrimonial offences and a ‘no fault’ approach applies in family law. Accordingly, many of the cases discussed below should be considered with a fair degree of caution in view of this shift in community attitudes. A ‘fault’ element still has relevance in this context, although the courts today are likely to be more tolerant. Additionally, there is generally a reluctance to allege and to find character or conduct disentitling. Where character or conduct has been reprehensible to some degree, it is most usually considered as reducing the applicant’s moral claim245 on the deceased’s estate rather than excluding the applicant’s claim. [page 46]

What constitutes character or conduct disentitling? 2.36 There are several definitions of the phrase ‘character or conduct disentitling’ in the cases, but in our view it is best defined in Re Gilbert, where Jordan CJ said:246 I think that this means character or conduct relevant to the purposes which the Act is intended to serve, for example, misconduct towards the testator, or

character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default.

This case also raised the question whether the conduct had to be conduct of which the deceased was aware or whether it included conduct occurring after the deceased’s death. In that case, the applicant widow committed perjury during the course of her application under the NSW Act. In an affidavit, she said that she had no means or income except the bequest left to her under the testator’s will. Under cross-examination, she admitted to owning a house which she was renting out and that she had £470 in three bank accounts. The Full Court of New South Wales held that such conduct did not amount to conduct disentitling, but it was taken into account in making the order. Such conduct could result in a refusal to make an order not because it amounts to conduct disentitling but because the application might so completely depend upon the credibility of the witness as to make it impossible for the court to act on that person’s testimony.247 The present NSW Act requires the court to take into consideration the character and conduct of the applicant before and after the death of the deceased,248 but this is only one aspect of a ‘multi-faceted’ inquiry.249 In Re Hardgraves (No 2),250 the Full Court in Queensland held that there was evidence proving that the appellant had sold the testator’s timber and cattle, had not accounted to him for the proceeds and had dishonestly failed to pay the testator his halfshare of a cream cheque. On this evidence, the appellant’s conduct disentitled him to provision. Allegations of misappropriation of assets and hindering the executor in the administration of the estate raised in the first appeal251 were not repeated in the second appeal. However, the court said that, if the appellant’s evidence was disregarded, it was possible to find that the appellant attempted to evade payment of a debt which he owed the testator by referring the creditor to the executor. The claiming of the

money and the evasion by the appellant occurred after the death of the testator. [page 47] The chronic drunkenness of an applicant has been raised in this context, but in only one case252 has it been held to constitute conduct disentitling. A more recent case253 has not adopted such a strict view of the matter. However, such conduct may well reduce the amount which might otherwise be ordered.254 Minor misappropriation of estate assets after death ‘is unlikely to be regarded as conduct disentitling’255 although what is minor or major will depend to some degree on the attitude of the judge or master who hears the case. Where the conduct amounts to what might be described as immoral conduct and occurs after the death of the deceased, it is not likely to be classed as conduct disentitling.256

Widows and widowers 2.37 In the case of widows and widowers, conduct disentitling is likely to consist mainly of acts which would in former times have been referred to as matrimonial faults. Examples are adultery, desertion and separation. But, in distinction from their implications under the former Matrimonial Causes legislation, these acts by themselves do not have automatic consequences and do not necessarily amount to conduct disentitling. What seems to be required is that the act must be such as to exhibit an intention to renounce the obligations of marriage257 and must not have been encouraged or contributed to by the deceased.258 It is useful

to look at acts of misconduct in some detail in order to determine at precisely what point conduct which might be regarded as reprehensible by the reasonable person becomes conduct disentitling in the eyes of the court. One clear case was Troja v Troja259 where a wife killed her husband. She was the principal beneficiary under his will but lost this benefit as a result of the murder, so she applied under the NSW 1982 Act. Her application was refused on the basis of conduct disentitling. Continuous domestic violence260 or taking a sane testator to a mental hospital for the purpose of having him or her admitted261 are actions justifying dismissal of the application. In jurisdictions where the concept of conduct disentitling exists,262 these actions would almost certainly amount to conduct disentitling. An isolated instance of [page 48] domestic violence, which the magistrate accepted as having been provoked by the deceased, was held not to prevent an order being made in Cross v Wasson.263

Adultery 2.38 Strict proof of adultery is not required. It is sufficient if the deceased had good grounds for believing that his or her spouse was guilty of adultery.264 As a general rule, evidence of adultery, or desertion followed by adultery, amounts to conduct disentitling.265 However, where allegations of adultery are made but are not proved, the applicant will be given the benefit of the doubt.266 Even if there is some evidence of adultery, the applicant may not be refused an order because the evidence may show that

it was condoned by the deceased267 or that the deceased also committed adultery.268 Adultery was not considered as sufficient to justify dismissal of a claim in the New South Wales case of McIntyre v McIntyre.269 However, in that state, conduct which would in former times have been regarded as conduct disentitling does not necessarily have that effect today because the relevant legislation270 simply provides that the court may take such conduct into consideration. In McIntyre’s case there was a mitigating factor in that the deceased’s behaviour towards the applicant, possibly caused by an excessive consumption of alcohol, was a probable contributing factor.

Desertion 2.39 Character or conduct disentitling is not restricted to those cases in which the applicant has been guilty of both desertion and adultery and is living in a relationship with another at the time of the spouse’s death.271 Clearly, desertion by itself may amount to conduct disentitling. Examples of desertion amounting to conduct disentitling are Re Parr272 and Re Gregory.273 These cases illustrate what [page 49] Mann J referred to in Re Kennedy274 as acts amounting to an intention to renounce the obligations of marriage. A better example of such an intention than Re Gregory would be difficult to find. In that case, the applicant widow lived apart from the testator for 42 years and supported herself. The testator never maintained her and there is no mention in the report that she

ever sought maintenance from him. She refused all requests by the testator to return and live with him. Her application was refused. Desertion is unlikely to amount to conduct disentitling where: 1.

the cause of the desertion can be attributed, at least partially, to conduct of the testator, for example violence towards the spouse275 or constructive desertion;276

2.

the applicant contributed to the assets in the estate and the evidence of desertion is equivocal;277

3.

the parties have subsequently agreed to live separately and apart;278 or

4.

the parties have lived together for many years and the period between the desertion and the death of the testator is comparatively short.279

The above examples are not intended to be exhaustive and are given merely to indicate that, where other factors are concerned, desertion by itself may not amount to conduct disentitling.

Separation 2.40 Separation by itself does not amount to conduct disentitling,280 but where the period is great and the parties do not communicate with each other during the period of separation, it does amount to conduct disentitling.281 In effect, where the parties have been separated for a long time and there are no special factors, the ‘proper’ provision for the applicant’s maintenance and support could be regarded as nil. Separation is unlikely to amount to conduct disentitling where: 1.

the applicant had good reason for refusing to live with his or her spouse, for example because of domestic violence282 or because the deceased committed adultery;283

[page 50] 2.

the marriage was one in name only, but the applicant was forced to bring up a child of the marriage alone;284 or

3.

the separation was not due solely to the applicant’s conduct; that is, the deceased was largely the cause of the separation.285

Conduct which does not amount to conduct disentitling 2.41 There are no general principles or guidelines to be found in the cases which assist in determining when conduct will be found not to amount to conduct disentitling, but the following examples may be of assistance: 1.

minor misappropriation of estate assets;286

2.

perjury by an applicant in a family provision application;287

3.

the applicant (spouse) either caused the break-up of the deceased’s marriage or was a willing partner in the breakup;288 and

4.

the applicant has treated the deceased badly and tried to destroy the relationship between the deceased and the children of the deceased’s first marriage.289

In Hampson v Hampson290 Campbell JA said that engagement in illegal conduct is not a bar to a claim under the Act. A similar view was expressed in West v France.291

Children 2.42

In the case of applications by children, conduct

disentitling consists of conduct that shows the complete rejection or positive ill-treatment of the parent by the child292 or a criminal act directed towards the parent (for example, stealing).293 In Re Green294 certain allegations were made which, if they had been proved, most probably would have resulted in the failure of the application on the basis of conduct disentitling. In that case, the allegations were that the daughter had disowned her parents, saying to other people that she was an orphan and that her parents were dead [page 51] (at a time when they were both very much alive). However, as indicated, these allegations were not substantiated. Failure to communicate with the deceased over a long period, not assisting in meeting the needs of the deceased (for example, during the deceased’s ill health) and threats of violence to the person or property of the deceased are other typical examples. A daughter who was convicted of murdering her husband was denied relief in Price v Roberts.295 This conduct, though not directed at the deceased, was nonetheless held to be conduct justifying the court in refusing an order in the applicant’s favour. A son who had a substantial criminal record and who was in gaol at the time of his application and was estranged from his father was refused an order in Ford v Simes.296 A son who had been heavily involved in illegal drug dealing for over 20 years, had spent several years in gaol and who had little contact with the deceased (his mother) during that time was refused an order in Hastings v Hastings.297 It was pointed out in that case that a criminal record was not in itself a bar to a claim under the Act.

Reference was made to an unreported case in 1987 where provision was made for such a person.298 Provision was also made for persons with a criminal record in Wilson v Public Trustee,299 McLeod v Radnidge300 and Curran v Harvey.301 Cases such as Price v Roberts, Hastings v Hastings and Ford v Simes do no more than show that in some circumstances, a criminal record and possibly other factors may persuade the court that dismissal of the application is justified.

Conduct of a child not amounting to conduct disentitling 2.43 The following are some examples of conduct which has been held not to amount to conduct disentitling. The list is not meant to be exhaustive but gives some guidance in the case of applications by children: 1.

unproven allegations of incest;302

2.

an estrangement between parent and child;303 [page 52]

3.

a daughter living in a de facto relationship against her parents’ wishes;304

4.

marriage outside the testator’s faith, having regard to the fact that the child was brought up in that faith and that faith was dear to the testator’s heart;305

5.

marriage without parents’ consent;306

6.

refusal to accept an offer of partnership by a parent;307 and

7.

assertion of independence.308

Onus of proof 2.44 In Re Duncan,309 the Victorian Full Court held that the onus of disproving conduct disentitling lay on the applicant where a testatrix had given reasons for excluding that applicant from benefit under her will. The case of Re K,310 which inferentially held that no onus lay on the applicant, was not cited. Later authorities have followed Re K311 and it may be that Duncan’s case now must be confined to its facts. However, in Re Green,312 the New Zealand Court of Appeal held that the ‘varying ways of regarding the onus as lying one way or the other are but a part of the consideration the Court must give to all the circumstances’.313 The court then criticised the approach of the Victorian Full Court in Duncan’s case, and said:314 The testator should not be allowed from the grave to condemn the child and to impose on that child the positive duty of disproving the allegations as an essential preliminary to prosecuting a claim. In our opinion, the reasons by the testator for excluding a child (or a widow) go no further than to concentrate attention on the question whether there is or has been character or conduct operating to negative the moral obligation that would otherwise have lain upon the testator.

The court went on to say that, if the allegations were unproven, the section315 has no application and at that point the question of onus of proof disappears. [page 53] It is submitted that Duncan’s case is unlikely to be followed today and that the current position is that the onus of proof that the applicant is guilty of conduct disentitling lies on the party resisting the application.316 Except apparently in the case of adultery,317 clear proof of conduct disentitling is required. Suspicion or inference is not sufficient.318

Queensland — consent to distribution disentitles 2.45 In Queensland, a potential applicant is effectively disentitled to bring an application if he or she (being of full legal capacity) notified the personal representative in writing that he or she consented to the distribution of the deceased’s estate or did not intend to make an application that would affect a proposed distribution.319

Contracting out and forfeiture clauses 2.46 There are occasions when a person will enter into an agreement, sometimes with his or her spouse and sometimes with his or her child, in which the person makes a payment to the other party in return for an undertaking that that party will not make an application under the legislation for provision out of the estate after the person’s death. In the majority of cases the agreement is made in the context of a divorce settlement. However, there are occasions when the agreement is made prior to a marriage.320 Sometimes the agreement is between parent and child321 and the agreement may even be between a child and a personal representative.322 A similar situation occurs where a will contains a legacy in favour of a particular person with the proviso that, if that person challenges the validity of the will or makes a family provision application, the disposition is to be regarded as void. These will be considered separately.

Contracting out

2.47 The question of contracting out of one’s rights to apply for provision first arose for decision in the early 1920s. The courts in New South Wales and South Australia took the view that one could [page 54] contract out,323 while the New Zealand courts took the view that such agreements were void.324 The basis of the view taken by the New South Wales courts was that they saw the Act as being one for the private benefit of the parties only and not having an element of public policy, and because of the proviso to s 5 of the New South Wales Act of 1916 in force at that time.325 The proviso stated that, if all the children and the husband or wife, as the case may be, should at any time within 12 months of the date of death agree in writing to be bound by the will and if, there being infants, such agreements were confirmed by the court, no application could be made thereafter for maintenance. The New Zealand courts, on the other hand, saw the legislation as involving questions of public policy326 and in addition saw support for their view in the intention behind the Family Protection Act 1908 s 33.327 This section provided that the mortgage, charge or assignment of any provision which might be made was of no effect, whether made before or after an order for provision.328 The original New South Wales decision in Re Doogan was gradually undermined in the 1930s and 1940s by the decisions of other Australian courts which declined to follow this decision. Their reasons were partly because the proviso to s 5 of the NSW

1916 Act did not apply elsewhere (although other reasons were advanced).329 In 1941, the Privy Council in Dillon v Public Trustee NZ330 held that the legislation did involve questions of public policy. The Privy Council said: The manifest purpose of the Family Protection Act, however, is to secure, on grounds of public policy, that a man who dies, leaving an estate which he distributes by will, shall not be permitted to leave his widow and children inadequately provided for …

Thus, the first ground of the decision in Re Doogan was effectively destroyed. Finally, in 1944, the High Court overruled Doogan’s case.331 The Chief Justice, Sir John Latham, and McTiernan J both held that the [page 55] proviso to s 5 of the NSW 1916 Act was one requiring the agreement of all parties interested and therefore did not apply to an agreement by one party and the testator or testatrix. Williams J took the view that the proviso to s 5 did not throw any clear light on the problem either way. Although s 5 has now been repealed, the High Court has confirmed a statutory policy ‘discovered, though not expressed’ against contracting out in the current New South Wales legislation.332 Such agreements have been held to be void on the grounds of public policy.333 Even if a particular contract is declared to be void, the court will take the terms of such an agreement into account in determining what provision, if any, ought to be made for an applicant.334 In construing the effect of a deed, and in particular whether the wording is intended to prohibit a party to that deed from making

an application to the court after the death of the other party, the courts tend to scrutinise such documents with some care before deciding that the deed has such an effect. Unless the deed clearly is intended to cover applications under the family provision legislation, the document will be construed as one not so intended.335 If such a deed has been executed in jurisdictions other than New South Wales, it does not prevent an application being made but it is an important factor to be taken into account by the court.336

New South Wales — release of right to apply for provision337 2.48 Section 95 of the NSW Act338 offers a procedure whereby a person may give a release of his or her right to apply for a family provision order in relation to the whole or any part of the estate or notional estate of a person, but such a release has effect only if it has been approved by the court and to the extent that the approval has not been revoked by the court.339 Proceedings for the approval by the court of a [page 56] release of a person’s right to apply for a family provision order may be commenced before or after the date of the death of the person whose estate may be the subject of the order. Thus, the giving (and approval) of a release can be used as part of an inter vivos agreement relating to estate planning, or as part of the resolution of a family law dispute or other proceedings (including a family provision claim to avoid the prospect of an eligible

person making a claim for further provision), or even as part of the exercise of the protective jurisdiction of the court.340 Section 95(4) provides that, when determining an application for the approval of a release, the court is to take into account all the circumstances of the case, including: whether 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; whether it was, at that time, prudent for the releasing party to make the release; and whether the provisions of any agreement to make the release are or were at that time, fair and reasonable. It has been observed that the very fact the agreement was made may itself show that the parties thought its terms were fair at the time of signing,341 and that, when considering whether a release was or is prudent, the court takes the view that a prudent person is one who acts with care and thought for the future, in particular in exercising care and good judgment in relation to his or her own interests.342 The phrase ‘at the time’ (that is, the time of making the relevant agreement) cannot be considered in isolation, because the court is not limited to examining the circumstances at the time of the making of the agreement but ‘shall have regard to all the circumstances of the case.’343 The phrase ‘release of rights to apply for a family provision order’ includes a reference either to an instrument executed by the person that would be effective as a release of those rights if approved by the court or an agreement to execute such an instrument. The court will not approve a release as part of consent orders merely because the parties agreed.344 The court, though, is

required by s 95(4)(d) to take into account whether the releasing party has taken independent advice in relation to the advice and, if so, has given due [page 57] consideration to that advice. Consequently, where the parties have received legal advice it ‘will ordinarily have an extremely strong claim for attention among the relevant circumstances.’345 Clearly, an infant cannot make an informed decision as to whether to give a release of rights, but in the exceptional circumstances in Faltas v Hong Peng346 such a release was approved. Section 96 provides that a release approved under s 95 can be revoked but only if the court is satisfied that either the approval was obtained by fraud or that the release was obtained by fraud or undue influence. The court may also revoke an approval (wholly or partially in respect of property) if it is satisfied that all persons who would be affected by the revocation consent to the revocation.

Forfeiture clauses 2.49 A forfeiture clause in a will of the type indicated in 2.46 was held to be void in Re Gaynor347 on two grounds. The first was that, as there was no gift over, it was a clause operating in terrorem. The second was that it was contrary to public policy, its object and effect being to deter the beneficiary from having recourse to the courts. This decision was followed in Re Chester,348 where there was a gift over clause. In that case, the clause was held to be void. Thus, it makes no difference whether there is a gift over

provision or not in the forfeiture clause. Gaynor’s case was followed in the unreported decision of Re Adams349 where a bequest to grandchildren was said in the will to be conditional upon a son not making an application for provision out of the estate under the Qld Act. In the event of such an application, there was a gift over clause to the residuary beneficiaries in the estate, who were two daughters. The facts were therefore virtually identical to those in Re Chester and Ryan J had no hesitation in holding the clause to be void. Gaynor’s case was also applied in Shah v Perpetual Trustee Co350 and in Singer v United Israel Appeal Refugee Relief Fund.351 Accordingly, a bequest subject to forfeiture is void irrespective of whether there is a gift over in the event of the forfeiture and whether the threat is indirect rather than direct. [page 58]

New South Wales — notional estate provisions352 2.50 In New South Wales, Pt 3.3 of Ch 3 of the NSW Act353 empowers the court, in limited circumstances, to designate property as ‘notional estate’ being property: that the deceased person disposed of before his or her death; or that could have formed the deceased person’s estate had he or she exercised a power to deal with the property before death; which has been distributed from the estate. In s 3(1) ‘notional estate’ of a deceased person is defined as ‘property designated by a notional estate order as notional estate of the deceased person’ and a ‘notional estate order’ is defined as ‘an order made by the court

under Chapter 3 designating property specified in the order as notional estate of the deceased person’. Section 63 of the NSW Act provides that a family provision order may be made in relation to the estate of a deceased person and subs (5) further provides that a family provision order may be made in relation to property that is not part of the estate of a deceased person, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Pt 3.3.354 The provisions of Pt 3.3 are, in large measure, similar to the notional estate provisions under the repealed NSW 1982 Act, but there are some significant differences,355 so that some cases decided under the repealed Act must now be read with circumspection.

Where there has been a ‘relevant property transaction’356 2.51 Notional estate can be designated where there has been a ‘relevant property transaction’. This is defined generally in s 75 of the NSW Act, with some specific examples given in s 76 and clarifications or elaborations of the definition contained in s 75(2) and (3), and s 77(1), (3) and (4). The definition in s 75(1) is very broad, covering circumstances where a person: does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being: (a) held by another person (whether or not as trustee), or (b) subject to a trust, and full valuable consideration is not given to the person for doing or not doing the act.

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The relevant property transaction must have taken effect: within three years of the death of the person where it was entered into with the intention, wholly or in part, to limit or deny provision to an eligible applicant; within one year of the death of the person if, at this time, he or she had a moral obligation to adequately provide for the eligible applicant which was substantially greater than any moral obligation of the deceased person to enter into a relevant property transaction; or on or after the date of death of the deceased person. It will be noted that, in the latter two instances, the deceased person’s intention is irrelevant. The power of the court to designate property as notional estate for the purpose of making a notional estate order is not at large and depends on the court first identifying a ‘relevant property transaction’.357 Section 74 provides that ‘relevant property transaction’ means a transaction or circumstance affecting property as described in s 75 or s 76. Section 75(1) provides that a person enters into a relevant property transaction if the person does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being: (a) held by another person (whether or not as trustee), or (b) subject to a trust; and full valuable consideration is not given to the person for doing or not doing the act.358 Section 3(1) provides that ‘property’ includes any valuable benefit. Section 76(1) provides that ‘subject to full valuable consideration not being given’, the six examples in s 76(2) constitute the basis of a relevant property transaction for the purposes of s 75. It is important to note that these examples are

not to be taken transactions.359

as

exclusive

of

all

relevant

property

The Act does not prescribe any test to determine whether ‘full valuable consideration’ has not been given but these words have been held to mean ‘such valuable consideration as amounts to, approximates, or is [page 60] broadly commensurate with, or is a fair equivalent of, the value of that for which it is given’.360 Whether full consideration is given is a question of fact and involves no exercise of the court’s discretion, but the court should apply ‘a common sense approach’ that avoids ‘finely balanced mathematical computations’.361 The absence of the phrase ‘in money or money’s worth’362 as qualifying the phrase ‘full valuable consideration’ raises the question whether, for example, personal services can be treated as part of the whole of full valuable consideration in appropriate circumstances.363 The onus of establishing whether full valuable consideration was not given, lies on the party asserting the proposition.364 The six examples of relevant property transactions given in s 76(2) are as follows: where a person, who is entitled to exercise a power to appoint or dispose of property, does not exercise the power with the result that the property becomes held by another person whether or not as trustee or where the power is able to be exercised by another person (para (a));365 if a person holds an interest in property as a joint tenant and does not sever the interest before ceasing to be entitled to do so

(by reason of the person’s death or on the happening of any other event) (para (b));366 [page 61] where there is a failure to extinguish an interest in property which results in property continuing to be held by another person or on trust (para (c)); where an act or omission relating to an entitlement to a life insurance policy has the effect of the benefits of the policy not passing into the estate (para (d)); where an entitlement to a superannuation fund by reason of an act or omission does not pass to the legal representative (para (e)); and where a contract is entered into (other than for full valuable consideration) whereby property is disposed of before, on or after the death of the person (para (f)). Section 77 provides when relevant property transactions take effect. In the case of those referred to in para (a), (c) or (d) they are taken to have been entered into immediately before, and to take effect on, the person’s death or the occurrence of the other event, resulting in the person no longer being entitled to exercise the relevant power. In the case of paras (b) and (e) they are taken to have been entered into immediately before, and to take effect on, the person’s death or the occurrence of the other event referred to. Finally, in the case of a contract (para (f)) they are taken to be entered into and to take effect when the contract is entered into. Provisions which restrict the court’s power to make a notional estate order are as follows.

First, even if the court is satisfied that the deceased person entered into a relevant property transaction and the transaction is one that accords with ss 75 and 76, s 80 provides that the court may only make an order designating property notional estate if: (a) the transaction took effect within three years before the date of the death of the deceased and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate for any person entitled to apply for a family provision order;367 (b) the transaction took effect within one year before the death of the deceased and was entered into at a time when the deceased had a moral obligation to make adequate provision for the proper maintenance, education or advancement in life of any person entitled to apply for a family provision order which was substantially greater than the moral obligation of the deceased person to enter into the transaction;368 [page 62] (c) the transaction took effect or is to take effect on or after the deceased person’s death.369 Second, s 78 provides that the court may designate property as notional estate only for the purposes of a family provision order and costs and s 88 provides that the court must not make a notional estate order unless it is satisfied that: the deceased person left no estate; or the deceased person’s estate is insufficient for the making of the family provision order or any order as to costs; or provision should not be made wholly out of the deceased person’s estate because there are other persons entitled to apply

for family provision orders or because there are special circumstances. Third, s 83 provides that the court must not make a notional estate order unless it: is satisfied that the relevant property transaction or the holding of property resulting from the relevant property transaction falls within s 83(1)(a)–(d); has considered the importance of not interfering with reasonable expectations in relation to property, the substantial justice and merits involved in making or refusing to make the order and any other matter it considers relevant in the circumstances. In Phillips v James370 the ‘expectations’ referred to were said to be the expectations of the person who was the present holder of an interest in the property in relation to which a notional estate order might be made. Fourth, s 89(1) provides that in determining what property should be designated as notional estate of a deceased person, the court must have regard to: (a) the value and nature of any property: (i)

the subject of a relevant property transaction, or

(ii) the subject of a distribution from the estate of the deceased person or from the estate of a deceased transferee, or (iii) held by the legal representative of the estate of any deceased transferee in his or her capacity as legal representative of the estate of the deceased transferee, (b) the value and nature of any consideration given in a relevant property transaction, (c) any changes in the value of property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), in the time since the relevant property transaction was entered into, the distribution was made, the property became held by the legal representative of the estate of the deceased transferee or the consideration was given,

[page 63]

(d) whether property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), could have been used to obtain income in the time since the relevant property transaction was entered into, the distribution was made, the property became held by the legal representative of the estate of the deceased transferee or the consideration was given, (e) any other matter it considers relevant in the circumstances.

This ‘designation’ power is, however, subject to restrictions contained in ss 83, 87, 88, 89 and 90 of the NSW Act. These restrictions include that the court must: be satisfied that the estate of the deceased person is insufficient to allow the making of provision that, in its opinion, should be made;371 not designate as notional estate ‘property in excess of that necessary to allow the making of provision that, in its opinion, should be made’;372 and consider matters, such as ‘the importance of not interfering with reasonable expectations in relation to property, the substantial justice and merits involved in making or refusing to make an order’ and any other relevant matter.373 Being beneficial legislation, the court’s approach to the construction of these provisions is liberal.374 The previous legislation was said to be very widely drawn.375 However, that comment was based on the words ‘as a result of’ in s 22(1)(a) and (4) (a), (c) and (e) and ‘directly or indirectly’ in s 22(1)(a) of the NSW 1982 Act. The words ‘directly or indirectly’ continue in s 75(1) of the current NSW Act, but the words ‘as a result of’ have been replaced by ‘that results in’ in s 75(1) and ‘with the result that’ in s 76(2)(a), (b) and (c) of the current NSW Act. Reference is made to the paragraph above adverting to s 76(2)(a) and to the cases cited in the footnote. The act complained of, including a failure to act, must now result in the transaction becoming a ‘relevant property transaction’.

A good example of a failure to act resulting in a prescribed transaction under the NSW 1982 Act is Kavalee’s case.376 The deceased had the right to direct the founder (manager) of a ‘stiftung’, a foundation created pursuant to the laws of the Duchy of Lichtenstein, on the distribution of its assets. His failure to do so was held to be a prescribed transaction. [page 64] In our view, the same failure to act today would be a relevant property transaction. Reference has been made to s 76(2)(b) which provides that the failure to sever a joint tenancy may, in the appropriate instance, constitute a relevant property transaction. There were differing judicial views as to the meaning and extent of the equivalent provisions in the NSW 1982 Act.377 This controversy has been resolved by the provisions of s 76(4) of the (current) NSW Act which provides that for the purposes described in s 76(2)(b), a person is not given full or any valuable consideration for not severing an interest in property held as a joint tenant merely because, by not severing that interest, the person retains, until his or her death, the benefit of the right of survivorship in respect of that property. Thus, cases determined on point under the previous Act should be viewed carefully. In Wentworth v Wentworth378 the value of shares in a company increased on the death of the deceased as there was no longer the possibility that he might allot shares to himself, a power he had under article 81A of the company’s constitution. Although no property rights changed in respect to any of the shares in the company, there was nonetheless a prescribed transaction. It is an example where property, defined by s 3(1) of the NSW Act to

include ‘any valuable benefit’, can come to be held by a person ‘although there has been no change at all in the ownership of any real or personal property, of any estate or interest in real or personal property, or of any money or of any debt, or of any cause of action or of any other chose in action or of any right with respect to property’.379 As has been noted, the nomination of superannuation benefits also falls within the notional estate provisions.380 However, since 1999, Commonwealth legislation has entitled a member of a superannuation fund to make a binding death benefit nomination to determine the disposition of his or her superannuation entitlements on death.381 The nomination must be in favour of the member’s dependants, as defined, or his or her estate.382 It may be argued that this legislation now overrides the New South Wales notional estate provisions in relation to this particular issue, namely to preserve a binding [page 65] nomination made in accordance with the Superannuation Industry (Supervision) Act 1993 (Cth).383 One limit to the reach of the New South Wales 1982 legislation arose in Prince v Argue.384 The deceased and his second wife had held property as joint tenants which, on the deceased’s death, passed to the second wife by survivorship. On her death approximately 15 months later, she left the property to her children of a previous marriage. The applicants, being children of the deceased’s first marriage, failed in their argument that their father’s omission to sever the joint tenancy prior to his death was a prescribed transaction in the circumstances. The issue turned on the effect of the death of the

second wife. In these circumstances, did the property which could have been the subject of a notional estate order still fall within the notional estate provisions? Macready AJ held that it did not:385 In the present circumstances the disponee was, of course, [the second wife] and she is now dead. There is now no property held by or on trust for her and thus the Court does not have power to make an order in respect of notional estate.

This limitation has been overcome by s 82 of the NSW Act (see 2.53 below). An argument that the power to appoint and dismiss the trustee of a trust gives rise to a prescribed transaction was rejected in Flinn v Fearne.386

Where there has been a distribution from the estate of the deceased 2.52 In the case of a ‘distributed’ estate, s 79 of the NSW Act requires a finding by the court that, as a result of a distribution from the estate of the deceased person, property became held by a person (whether or not as trustee) or subject to a trust. If that finding is made, the court may, subject to ss 87 and 88, make an order designating as notional estate of the deceased person such property as it may specify, being property which is held by, or on trust for, the person or the object of the trust, whether or not that property is the property distributed. In Richardson v Rearden387 it was said: That provision means that if someone has received a benefit from a deceased estate, it is possible to designate as notional estate an asset of that person, even if that asset is not something into which

[page 66]

it would be possible to trace any specific asset of the testator. That ordinarily gives the court a fairly wide power to do practical justice, and make sure that the assets of a deceased estate end up, so far as at least their value is concerned, in the hands that the court decides are the appropriate ones to enable the deceased to fulfil his or her obligations.

As in the case of notional estate arising as a result of a relevant property transaction, the court will not make a notional estate order in relation to distributed estate unless the estate remaining in the administrator’s hands is insufficient for the making of the family provision order or any order as to costs.

Section 82 2.53 Section 82 of the NSW Act applies some different preconditions which do not appear to have received any detailed judicial consideration. However, there is a brief reference to the section in Hardcastle v Perkuhn388 where it was said to deal with subsequent dispositions made by the person who receives the property, such as that which occurred in that case ‘when the defendant gave away the proceeds to her husband’. It appears that the section would enable an order to be made against property of the husband in appropriate circumstances. Under s 82(1) the court may make a notional estate order if it is satisfied that: (a) immediately before the date of the death of a person (the deceased transferee), it had power … to make a notional estate order designating property held by, or on trust for, the deceased transferee as notional estate of the deceased person, and (b) the power did not arise because property became held by the deceased transferee as trustee only, and (c) in the case of property referred to in subsection (2)(b), there are special circumstances that warrant the making of the order.

The section goes on to provide that the property which may be designated as notional estate under s 82(1) is:

(a) if administration has been granted in respect of the estate of the deceased transferee — property that is held by the legal representative of the estate of the deceased transferee, and (b) if all or part of the estate of the deceased transferee has been distributed — property that became held by, or on trust for, a person, or the object of a trust, as a result of the distribution of the deceased transferee’s estate. A notional estate order made under s 82 may be made instead of or in addition to an order made under s 79, s 80 or s 81. [page 67]

Additional notional estate orders 2.54 Section 87 provides that more than one notional estate order may be made in any proceeding or subsequent proceeding. Section 81 provides that a notional estate order may be made where the estate is affected by a subsequent relevant property transaction. A person’s rights are extinguished to the extent that they are affected by a notional estate order.389

Where application brought out of time 2.55 Section 90 of the NSW Act imposes an extra hurdle which needs to be overcome by a plaintiff who brings his or her application out of time. The plaintiff must establish the circumstances set out in s 90(2) or that there are other special circumstances which justify the making of an order designating property as notional estate.390 The section gives little indication of

the types of circumstances that may count as special circumstances, other than circumstances involving such things as property not finally vesting in interest, and lack of capacity in the plaintiff. Another example is that there has been a very significant change of circumstances, from circumstances where there was little point in a family provision application to circumstances where the plaintiff had extreme need, and, consequently, a strong case.391 As to the meaning of ‘special circumstances’, see the discussion by Campbell J in Cetojevic v Cetojevic.392

Costs 2.56 The court may order that the costs, charges and expenses of, or incidental to, proceedings under the NSW Act in relation to the estate or notional estate of a deceased person be paid out of the estate or notional estate or both, in such manner as the court thinks fit.393 [page 68]

Law reform 2.57 The National Committee for Uniform Succession Laws has recommended the adoption of these New South Wales provisions with some modifications to improve their effectiveness.394

New South Wales — factors warranting 2.58

The general scheme of the repealed NSW 1982 Act and the

current Act is, first, to limit applicants to eligible persons, as defined, and, second, to divide eligible persons into two groups. In the first group are persons who may be described as natural objects of testamentary recognition.395 These include a wife, husband, de facto spouse396 and a child of the deceased. In the second group are persons who would not normally be regarded as natural objects of testamentary recognition, but because of the circumstances of the case, might be so regarded.397 They are: a former wife or husband; a grandchild who was at any time wholly or partly dependent on the deceased; a person who at any time was a member of the household of which the deceased was a member and who at any time was wholly or partly dependent on the deceased; and a person who was living in a ‘close personal relationship’ with the deceased at the time of the deceased’s death. Successful applicants in the latter two categories have included siblings, foster children, stepchildren,398 same-sex partners,399 carers400 and a miscellany of others.401 Dependency as used in this category of eligible applicant is referred to at 4.67 and 4.69. [page 69] Applicants in the second group must show that there are ‘factors warranting’ the application.402 A good example is Churton v Christian403 where a former wife applied and the evidence showed that a close relationship continued notwithstanding the divorce. In the light of this evidence Priestley JA said:404 The circumstances make applicable to her the description of a person who might

well, to use McLelland J’s words, be ‘regarded as a natural object of testamentary recognition’ by the deceased.

In Churton v Christian, Priestley JA asked the question, what are warranting factors within the meaning of the subsection? He answered it by referring to what McLelland J said in Re Fulop,405 viz, ‘factors’ referred to in the subsection are factors which, when added to facts which render the applicant an ‘eligible person’, give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased. The other judges in this New South Wales Court of Appeal decision agreed with Priestley JA.406 However, as was pointed out in Re Fulop,407 the court might find there were factors warranting the application but still dismiss it. In the later New South Wales Court of Appeal decision of Brown v Faggoter,408 Fitzgerald AJA said: In my opinion, the trial judge was wrong in his view that subs 9(1) [now NSW Act s 59(1)(b)] involves a ‘reasonably strict test’. The requirement that an application is warranted is fulfilled if the application has reasonable prospects of success. It need not be demonstrated for the purpose of subs 9(1) that the application is entitled to succeed; i.e. that an order in favour of the applicant is warranted. Conversely, if an application is entitled to succeed, it is axiomatic that the making of the application was warranted.

The other judges agreed with Fitzgerald AJA’s reasons. Accordingly, different tests emerge from these two Court of Appeal decisions: the ‘reasonably strict’ test in Churton v Christian (viz, the factors must raise the status of an eligible person to that of a person who would be generally regarded as a natural object of testamentary recognition by the deceased); and [page 70]

the test in Brown v Faggoter (viz, the factors must lead to the conclusion that the application has reasonable prospects of success). Understandably, Macready AJ in Moore v Foodey409 observed that the test in Brown v Faggoter was a ‘somewhat different and perhaps easier test than that … in Churton v Christian’ and suggested that the law might be in a state of flux on this point. There must be considerable doubt that the Brown v Faggoter test will stand. It was not followed by Windeyer J in Penfold v Perpetual Trustee.410 Its validity was queried by Bryson JA in Porthouse v Bridge411 and questioned by Basten JA (with whom Allsop P and Ipp JA agreed) in Diver v Neal.412 It was not applied in Curran v Harvey.413 Meagher JA, with whom Gleeson JA agreed, regarded the relevant principles as those set out in Re Fulop, Churton v Christian and Diver v Neal414 but the Court of Appeal has not said that Brown v Faggoter was wrongly decided.415 Other New South Wales judges have adopted the earlier test as the correct one.416

Queensland — donatio mortis causa 2.59 A donatio mortis causa is regarded as an inter vivos transaction and, as a general rule, the subject matter of the gift is not an estate asset.417 An exception exists in Queensland, where such gifts are deemed to be estate property.418 Accordingly, where the general rule applies, title to property the subject of a donatio mortis causa effected outside the jurisdiction is governed solely by the lex situs. It does not become estate property even if it is subsequently brought into the jurisdiction.419 [page 71]

Public policy 2.60 As was stated by Lord Mansfield in the very early case of Hollman v Johnson:420 The principle of public policy is this … no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.

Issues of public policy have arisen in family provision applications. In Fletcher v Furnance,421 the plaintiff sought an order that the defendant pay her one-half of the money she might be liable to repay to Centrelink as a result of her dishonesty. The court held this was highly offensive to public policy and an order was refused. In Varnel v Heyes422 the plaintiff claimed a pension as a single person but was living with the deceased and should have received a couple’s pension in a lesser sum. The difference, over an eightand-a-half-year period, resulted in an overpayment of $86,111, which was therefore owed to Centrelink. It was argued that the court should not make an order in favour of the applicant on grounds of public policy; that is, the order would relieve or assist the applicant in paying off a debt arising from her illegal conduct.423 The court avoided making a direct payment to the applicant in the circumstances but nonetheless made provision for her by way of a trust. In our view another judge or an appellate court may not agree with the approach adopted. Although it may be seen as not directly rewarding an illegal act, it is difficult to regard it as not indirectly doing so.

Where the estate has been distributed 2.61 As a statement of general principle, once an estate has been distributed, no family provision order can be made as there is no

estate against which the order could apply. Authority for such a proposition can be found in Re Donohue,424 Re Perry,425 Re Donkin,426 Re McPherson427 and Robbins v Hume.428 However, all jurisdictions, except Queensland, Tasmania and Victoria, have specific legislation which overrides this principle. This legislation is discussed below. Australian Capital Territory: Section 20 of the ACT Act allows the court to make an order after the estate has been distributed [page 72] except where the distribution was properly made for the purpose of providing for the proper maintenance, education or advancement in life of a person who was totally or partially dependent on the deceased person immediately before the death of the deceased person; or where it was made: (i) more than 12 months after the date when administration of the estate was granted; and (ii) before the administrator had notice of the application for the order or an application for an extension of time and the property that was so distributed has vested in possession of any person. New South Wales: See 2.50. Northern Territory: Section 20 of the NT Act allows the court to make an order after the estate has been distributed except where the order would affect or disturb a distribution that was a proper distribution made for the purpose of providing for the maintenance, education or advancement in life of a person who

was totally or partially dependent on the deceased person immediately before his or her death. South Australia: Section 14(3) of the SA Act allows the court to make an order after the estate has been distributed. There are no qualifications on this power in South Australia. However, if an application has not been filed and served429 within time and the estate has been distributed, an application for an extension of time cannot be made.430 The court has no power to set aside a distribution.431 An order was made after an estate had been distributed in Broadhead v Prescott.432 Western Australia: Section 8 of the WA Act allows the court to make an order under s 65 of the Trustees Act 1962 where an estate has been distributed. However, an order under s 65 of the Trustees Act 1962 cannot be made involving a claim under the WA Act unless the application is made within the time permitted by that Act. The time permitted by the WA Act includes an extension of time pursuant to s 7(2)(b) of that Act.433

Method of calculation of lump sum 2.62 Many estates are sufficiently large to allow a lump sum to be ordered to provide an income for the applicant. If the court takes the [page 73] view that this is appropriate the question that can then arise is how that lump sum should be calculated. One possibility is to take a broad view and determine a sum without trying to assess precisely what the applicant’s needs are.434 Another method is to use what are commonly known as

the discount tables. These are used in damages cases. The problem with using these tables is that it is difficult, if not impossible, to know which is the correct table to use in a family provision application. In Stern v Sekers435 Ward J was unable to find any conclusive authority on the most appropriate table for a family provision application. The New South Wales Court of Appeal, when given the opportunity to declare which table might be used in a family provision application, declined to make a declaration.436 The discount tables were used as a check on an estimate based on another methodology in Tchadovitch v Tchadovitch.437 This is likely the only context in which the tables have any relevance in family provision applications. Expert evidence in relation to actuarial calculations involving the use of discount tables is not inadmissible, but the New South Wales Court of Appeal has said its use in all cases should not be encouraged.438 It is probably justified only in large estates where all parties agree on the need to place this evidence before the court. Even then, the parties take the risk that the court may regard this evidence as irrelevant. As Campbell J said in Tchadovitch v Tchadovitch:439 When the Act enables the Court to make proper provision for eligible people when a testator has failed to do so, it is far from clear that the Court ought to do so using a type of factual material that a testator is unlikely to have used.

Effect of financial agreements on family provision applications 2.63 Pre-nuptial agreements were introduced into Australia as a result of amendments to the Family Law Act 1975 (Cth) in December 2000. They are now commonly referred to as financial agreements.440 Pre-nuptial agreements were used before 2000,441

but they were not generally enforceable at that time. In family law now, these agreements [page 74] cannot be set aside except on a few narrow grounds and are thus effective and enforceable. It is well settled that an agreement not to make a family provision claim does not oust the jurisdiction of the court.442 However, just because the court will disregard the agreement for the purposes of jurisdiction, it does not follow that the court will disregard such an agreement as a matter of course on the substantive question whether adequate provision has been made for an applicant. There is no doubt that a financial agreement is admissible in evidence to show that the parties thought its terms fair at the time they signed it.443 It is also a relevant fact in the totality of the relationship between the applicant and the deceased.444 It is therefore admissible on either ground. Once admitted into evidence, the question arises, what does it say about ‘the totality of the relationship between the applicant and the deceased’?445 Clearly it would show an intention at the time of the agreement that neither party would make a family provision claim in the event of the death of the other party. However, there may be circumstances where the existence of such an agreement would be irrelevant to a claim. At the initial hearing of Singer v Berghouse, Master Windeyer said:446 The strange provisions of the will are clearly intended to give effect to the agreement and although the agreement does not prevent this claim from being brought it is admissible under s 9(3)(c) and (d) of the Family Provision Act

although no doubt it might not have been admissible and would be held to have been irrelevant had the marriage lasted for a reasonably long period of time.

In that case the husband died 11 months after the wedding and 12 months after executing the agreement. In Hills v Chalk, Keane JA said:447 There may be cases, for example, where the length of time and change in circumstances between the making of a pre-nuptial agreement and the death of one of the parties is such that the pre-nuptial agreement is no longer a true reflection of the parties’ relationship. Or it may be that the evidence shows that the execution of the pre-nuptial agreement was procured by economic or other pressure.

[page 75] In the same case Fraser JA said:448 The strength of a pre-nuptial agreement as one of the factors must of course vary from case to case.

It follows that the duration of the marriage and the general circumstances surrounding the agreement and the applicant’s circumstances at the date of the hearing must be considered before any attempt can be made to ascertain the true relevance of a financial agreement in a family provision claim. As such agreements are one of the circumstances which the court must consider, it follows that a financial agreement is not of itself decisive against a claim.449 Although the duration of the marriage is a relevant factor in determining the effect of a financial agreement, it would be unwise to focus on a particular number of years and say that the court would or would not disregard a particular financial agreement after a certain period has elapsed since the agreement was executed. The paucity of decisions involving these agreements would make any prediction

hazardous in the extreme. It is after all only one of many circumstances which are relevant to a family provision claim. For example, there may have been gifts made by the deceased to the applicant before death450 or the real question may be whether an extension of time should be granted and no satisfactory reason for the delay has been given.451 Even if there are few other relevant circumstances, judicial opinion may be divided on the effect of the agreement.452 One might regard a 10-year marriage as sufficiently long to justify the court saying the agreement is no longer a true reflection of the parties’ relationship. Although the court did not use these words, an order was made in such a case in Gigliotti v Gigliotti.453 However, the basic intention of the parties that the house should be preserved for the deceased’s family was retained in the order. The order gave the applicant a life interest in a house to be bought by the executor with remainder in terms of the will. The applicant had sought an order that she be given the house absolutely. An order for provision was made in a case involving a prenuptial agreement and an eight-year relationship (three years de facto, five years marriage) in Neil v Jacovou.454 [page 76] All that one can say is that in the case of a relatively brief marriage, a financial agreement is likely to be taken into account in determining whether adequate provision has been made for an applicant and there is a possibility that, having regard to all the circumstances, the court will find that adequate provision has already been made for the applicant. In other words, each party has decided what is adequate provision for the other party and

there is no reason why the court should decide otherwise. Even if an order is made, the court may well interfere as little as possible with the terms of the agreement and the applicant may be disappointed with the result.

Summary dismissal 2.64 The summary dismissal of a family provision application is not precluded by the relevant family provision legislation.455 However, applications for summary dismissal in family provision cases are uncommon and successful ones are rare.456 The reason for this was stated in Jackson v Newns457 as follows: … facts in family claims are invariably in dispute to some appreciable degree, and a fair bit is at large in a field of discretion. The claims usually involve a close examination of human relationships, interpersonal affairs, family stories, beliefs, perceptions, expectations, people’s station in life and impalpabilities in life. The Court’s evaluation of the testator’s moral duty … and the exercise of a discretion that involves some value judgment means that ordinarily family claims are best left to trial to determine their sustainability.

An applicant for summary dismissal must show that the other party’s claim or defence is not seriously arguable or, in other words, no cause of action exists.458 Where the executor has acted improperly, it may be impossible to determine whether or not the application must fail and thus an application for dismissal in such a case must be refused.459 In recent years successful applications have been made where: the deceased died domiciled outside the jurisdiction with no actual estate within the jurisdiction;460 [page 77] the application was hopeless;461

the applicants failed to comply with an order to file a supporting affidavit;462 in a Victorian case before the 2014 amendment, the deceased did not have a responsibility to provide for the applicant;463 and the applicant had disappeared and could not be found, he had effectively abandoned the proceedings and the estate was insolvent.464

Caveatable interest 2.65 An applicant for provision under this legislation does not have a caveatable interest in the estate’s realty.465

Crisp orders 2.66 Changes in society in recent years have resulted in orders for flexible life interests. One of these changes is that people are living longer today and thus there is a greater likelihood than before that many will need nursing care as they grow older. Another is that increasing amounts are required from time to time to gain access to a nursing home. Orders designed to provide for these changes are now commonly known as Crisp orders. The term ‘Crisp order’ derives from the New South Wales case of Crisp v Burns Philp Trustee Company Ltd.466 It is one in which a life interest in property or an interest in the property is granted with the right to have the property sold (should the need arise) to secure more appropriate accommodation for the applicant. It is intended to provide flexibility, by way of a life estate, the terms of which could be changed to cover the situation of an applicant moving from his or her own home to a retirement village or to a nursing home or to a hospital.

The nature and purpose of this type of order was well expressed in Milillo v Konnecke as follows:467 A Crisp order may entitle a plaintiff, from time to time, to require the executor of a will to sell a home devised by the will, or otherwise owned by the estate, and to use the proceeds for purposes that may include purchasing another home for the plaintiff’s use and

[page 78] occupation, or providing accommodation for the plaintiff in a retirement village or similar institution, or in like accommodation providing hospitalisation and nursing care. The flexibility provided by such an order underlies the notion that a Crisp order confers a ‘portable life interest’.

Orders tend to be most relevant in cases involving older spouses.468 For an example of the form of such an order see Cross v Wasson.469 It will be noted that the trustee’s obligation to use the trust fund to acquire a substitute property arises on the request of the person the subject of the Crisp order. It is not affected by the recovery of any money after the plaintiff’s death and any dispute between the trustee and the person the subject of the Crisp order can be settled by an application to the court for advice or directions. _______________________ 1.

The position was changed in 1937 when Victoria extended the right to husbands pursuant to an amendment to the Administration and Probate Act of 1928.

2.

Based on reported cases in all jurisdictions, it appears that claims by widows have outnumbered claims by widowers by a ratio of approximately 4:1.

3.

See 3.2, where this development is discussed.

4.

See 4.66–4.72.

5.

See Chapter 4 generally.

6.

See 2.5.

7.

Re McCaffrey (1982) 29 SASR 582 at 585; Bowyer v Wood (2007) 99 SASR 190 at 201;

[2007] SASC 327 at [39]; Wall v Crane [2009] SASC 382 at [16]. 8.

Blore v Lang (1960) 104 CLR 124 at 128; Mayfield v Lloyd-Williams [2004] NSWSC 419.

9.

Bartlett v Coomber [2008] NSWCA 100 at [50]; Dugac v Dugac [2012] NSWSC 192 at [39]–[42]; Jordan-Watt v Riordan [2013] NSWSC 1132 at [112]; Fulton v Fulton [2014] NSWSC 619 at [265]–[284].

10.

Goodman v Windeyer [1980] HCA 31; [1980] 144 CLR 490 at 505.

11.

(1957) 97 CLR 566.

12.

[2008] NSWCA 190.

13.

[2014] NSWSC 15 at [56]–[62].

14.

Re Heagerty (1915) 34 NZLR 905; [1916] GLR 64 at 65; Re Bell (1915) 34 NZLR 1067 at 1070; Ahearn v Ahearn [1917] St R Qd 167 at 170; Re Richardson (1920) SALR 24 at 46; Re Knight [1939] GLR 673 at 677; Re Wilson [1973] 2 NZLR 359 at 362; Luciano v Rosenblum (1985) 2 NSWLR 65 at 69.

15.

Re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 971; 12 GLR 753; Colquhoun v Public Trustee (1912) 31 NZLR 1139; 14 GLR 432; Hart v Hart (1915) 17 GLR 393; Parish v Valentine [1916] NZLR 455; [1916] GLR 367; Bosch v Perpetual Trustee Co [1938] AC 463 at 482; Re Turner [1943] St R Qd 27 at 31; Dun v Dun [1959] AC 272 at 279; Re McCaffrey (1982) 29 SASR 582 at 585.

16.

(1962) 107 CLR 9 at 19.

17.

Re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 969, 970; 12 GLR 753; Re Richardson [1920] SALR 24 at 43; Welsh v Mulcock [1924] NZLR 673 at 683; Re Duncan [1939] VLR 355 at 358.

18.

Laird v Laird (1903) 5 GLR 466 at 467; Re Harris (1918) 18 SR (NSW) 303 at 307; Re Williamson [1954] NZLR 288 at 301.

19.

Re Hodgson [1955] VLR 481 at 485; Re Liston [1957] VLR 50 at 52.

20.

Re Vrint [1940] 1 Ch 920 at 926; [1940] 3 All ER 470 at 475.

21.

Chan v Chan [2016] NSWCA 222 at [33].

22.

Ibid.

23.

Blore v Lang (1960) 104 CLR 124 at 135.

24.

(1975) 9 ALR 93 at 99; (1976) 50 ALJR 539 at 542. See also Jones v Smith [2016] VSCA 178.

25.

See Andrew v Andrew (2012) 81 NSWLR 656 at [26] et seq per Basten JA and Bates v Cooke [2015] NSWCA 278 at [54] et seq per Meagher JA. We are indebted to the NSW editor for the above observations.

26.

Bondelmonte v Blanckensee [1989] WAR 305 at 307.

27.

Re Hodgson [1955] VLR 481 at 491; Coates v National Trustees Executors and Agency Co Ltd (hereafter Coates v NTE&A) (1956) 95 CLR 494 at 508, 509; McCosker v McCosker

(1957) 97 CLR 566 at 575; Stott v Cook (1960) 33 ALJR 447 at 448; Re Brown [1972] VR 36 at 42; Re Elwell [1977] Qd R 141 at 145; White v Barron (1980) 144 CLR 431 at 441; Bondelmonte v Blanckensee [1989] WAR 305 at 307; Rodgers v Rodgers (1993) DFC 95146 at 76,781, 76,782. 28.

(1979) 143 CLR 134; 53 ALJR 249.

29.

Ibid at (ALJR) 253.

30.

(1994) ACL Rep 395 WA 2 (Appeal No 77/93, judgment delivered 17 December 1993).

31.

(1994) 181 CLR 201 at 209, 210; 68 ALJR 653 at 657; 18 Fam LR 94 at 100. The comments on this process were revisited and cited with obvious approval by the High Court in Vigolo v Bostin (2005) 221 CLR 191 at 202, 203 (Gleeson CJ) and 212, 213 (Gummow and Hayne JJ). Some doubt was cast on the universal application of the two-stage process by Callinan and Heydon JJ at 230, 231 because the questions the court has to answer do not necessarily always divide neatly into two. This issue was alluded to by White J in Sellars v Maeyke [2005] QSC 368 and Martin CJ in Christie v Manera [2006] WASC 287. It was not suggested that the description of a two-stage process was inherently wrong.

32.

(1994) 181 CLR 201 at 211; 68 ALJR 653 at 657; 18 Fam LR 94 at 101.

33.

Frey v Frey [2009] QSC 43 at [199].

34.

Lee-James v Mayer [2006] WASC 224 at [45].

35.

Andrew v Andrew (2012) 81 NSWLR 656 at [41]: Basten JA seems to have based his views on the fact that s 60(2) provides a more focused direction to the court as to the relevant matters it must consider — see 2.2 above.

36.

Ibid at [6].

37.

Ibid at [94]. In Keep v Bourke [2012] NSWCA 64 the Court of Appeal proceeded on the basis that the ‘two-staged’ process continued to operate with respect to claims brought under the Succession Act; the issue in that case, unlike Andrew v Andrew was not the subject of argument before the court.

38.

Salmond v Osmond [2015] NSWCA 42; Poletti v Jones [2015] NSWCA 107; Bates v Cooke [2015] NSWCA 278; Burke v Burke [2015] NSWCA 195.

39.

Salmond v Osmond, ibid, at [54].

40.

[2015] NSWCA 107 at [19].

41.

See Re Elwell [1977] Qd R 141 at 144–5.

42.

[1972] Qd R 281 at 284.

43.

[1977] Qd R 141.

44.

Ibid at 145.

45.

[1962] NZLR 6.

46.

Ibid at 13.

47.

Re Elwell [1977] Qd R 141.

48.

Vigolo v Bostin (2005) 221 CLR 191.

49.

Referred to in 2.2.

50.

Re Maitland [1954] 1 DLR 657 at 673; Re Harrison [1962] NZLR 6 at 13; Re Young [1965] NZLR 294 at 299; Re Reeve [1968] NZLJ 145; de Angelis v de Angelis [2003] VSC 432 at [45]; Warriner v Warriner [2015] VSC 314 at [63].

51.

Collins v Mutton [2012] NSWSC 548 at [94]; DW v RW [2013] QDC 163 at [28]; Bolger v McDermott [2013] NSWSC 919 at [360]; Nicholas v Nicholas [2013] NSWSC 697 at [124]; Vidler v Ivimey [2013] NSWSC 1605 at [115].

52.

Bosch v Perpetual Trustee Co [1938] AC 463 at 478.

53.

Re Leonard [1985] 2 NZLR 88 at 92. Woodhouse P expressed a similar view when he said that he agreed with the statement that ‘[w]hat is adequate, what is proper, and what is needed for maintenance and support are all relative questions which the Court in its discretion must determine in the circumstances of the particular case having regard to the size of the estate and competing claims’: at 91, lines 38–45. See also Leyden v McVeigh [2009] VSC 164 at [33]. And see Chan v Chan [2016] NSWCA 22 at [33], referred to in 2.2 above.

54.

Discussed specifically in 3.4–3.7.

55.

Similar views were expressed in Re Easton [1958] NZLR 125; Re Buckland [1966] VR 404; Re Bowcock [1968] 2 NSWR 700; Green v Ryterski (1981) 7 Fam LR 834; Hawkins v Prestage [1989] 1 WAR 37 at 45–7.

56.

Re Greene’s Estate (1930) 25 Tas LR 15; Re Norris [1953] Tas SR 32; Re Coventry [1979] 3 All ER 815 at 819, 820; Re Wood (1982) Law Soc Gaz 774; King v White [1992] 2 VR 417 at 422; Alexander v Jansson [2010] NSWCA 176 at [18]; Semmler v Todd [2015] VSC 567 at [96].

57.

[2015] NSWSC 716 at [288] et seq.

58.

NSW Act s 80(2)(b); Vic Act s 91(2)(c); Family Protection Act 1955 (NZ) s 3(2).

59.

Re Rush (1901) 20 NZLR 249; Re Allardice; Allardice v Allardice (1910) 29 NZLR 959; 12 GLR 753. The treatment of moral duty in Allardice was approved by the Privy Council in Bosch v Perpetual Trustee Co [1938] AC 463 at 478, 479.

60.

Coates v NTE&A (1956) 95 CLR 494 at 512. See also Singer v Berghouse (1994) 181 CLR 201 at 209; 68 ALJR 653 at 657; 18 Fam LR 94 at 100. Comments concerning a gloss on the statute in Singer v Berghouse were regarded as obiter by Kirby P in McKenna v Solomon (1995) DFC 95-157 at 77,306 and Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 27, 28.

61.

Benney v Jones (1991) 23 NSWLR 559 at 569; Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 29; Massingham v Massingham (1996) ACL Rep 395 NSW 36.

62.

Hughes v NTE&A (1979) 143 CLR 134 at 158; 53 ALJR 249; Goodman v Windeyer (1980) 54 ALJR 470 at 476; McKenna v Solomon (1995) DFC 95-157; Permanent Trustee Co Ltd

v Fraser (1995) 36 NSWLR 24 at 29. For a contrary view, see Lloyd v Nelson (1985) 2 NSWLR 291. 63.

Hughes v NTE&A (1979) 143 CLR 134 at 158, 159; 53 ALJR 249.

64.

Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 28.

65.

(1991) DFC 95-101.

66.

(1994) DFC 95-150.

67.

(1991) 23 NSWLR 559 at 569.

68.

Now s 59(2) of the NSW Act.

69.

(1995) 36 NSWLR 24.

70.

However, 12 months earlier in MacGregor v Hunter (1994) DFC 95-150, Sheller JA at 77,127 used the term ‘moral duty’.

71.

Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327; Kozlowski v Kozlowski [2013] SASFC 112.

72.

Blair v Blair (2004) 10 VR 69 at 75, 84. This decision followed previous decisions on this point, namely, Grey v Harrison [1997] 2 VR 359 and Collicoat v McMillan [1999] 3 VR 803.

73.

Kitson v Franks [2001] WASCA 134.

74.

(2005) 221 CLR 191.

75.

Ibid; see Gleeson CJ at 202, 204; and Callinan and Heydon JJ at 230.

76.

Hughes v NTE&A (1979) 143 CLR 134 at 159, 160; 53 ALJR 249 at 258.

77.

See Hughes v NTE&A (1979) 143 CLR 134; 53 ALJR 249.

78.

See cases referred to in 4.33.

79.

See NSW Act s 60(2)(h).

80.

[1962] NZLR 6.

81.

Ibid at 13.

82.

Orders were made in bad relationship cases in Wheatley v Wheatley [2006] NSWCA 262 and Brandon v Hanley [2014] VSC 103. Another possible example is Di Mauro v Sciara [2015] NSWSC 1796.

83.

[2012] TASSC 67. This case is digested in Table 4.11.

84.

Hawkins v Prestage [1989] 1 WAR 37.

85.

See further 4.31–4.33.

86.

See NSW Act s 60(2)(a).

87.

Dugac v Dugac [2012] NSWSC 192 at [79]; Bowditch v NSW Trustee [2012] NSWSC 275 at [111]; Butler v Morris [2012] NSWSC 748 at [106]; Camernik v Reholc [2012] NSWSC 1537 at [159]; Wheat v Wisbey [2013] NSWSC 537 at [128]; Walsh v Walsh [2013]

NSWSC 1065 at [121]; Lowe v Lowe [2014] NSWSC 371 at [137]; Underwood v Gaudron [2014] NSWSC 1055 at [227]; Kusumo v Kusumo [2014] NSWSC 1704 at [121]; Morton v Mangan [2014] NSWSC 1731 at [130]; Ciric v Ciric [2015] NSWSC 313 at [129]; Chapman v Ingold [2015] NSWSC 1604 at [115]; Gray v Mather [2016] NSWSC 699 at [90]; Hinderry v Hinderry [2016] NSWSC 780 at [271]. 88.

Toth v Graham [2014] NSWSC 393 at [53] per Kunc J; Johnson v Johnson [2014] NSWSC 1682 at [60] per Kunc J; Pang v Fong [2014] NSWSC 1425 at [118] per Robb J; Magur v Brydon [2014] NSWSC 1931 at [98] per Robb J; Plaska v Coffey [2014] NSWSC 1930 at [64] per Robb J; Lado Causillas v NSW Trustee & Guardian [2015] NSWSC 1204 at [352] per Robb J; Brandon v Hanley [2014] VSC 103 at [20] per McMillan J; Hartnett v Taylor [2014] VSC 427 at [43] per Sifris J; Warriner v Warriner [2015] VSC 314 at [59] per Zammit J.

89.

[2015] NSWSC 1604 at [115].

90.

Burke v Burke [2015] NSWCA 195 at [84] per Ward JA; and see Chapple v Wilcox (2014) 87 NSWLR 646 at [19] per Basten JA and at [67] per Barrett JA.

91.

Re Joliffe [1929] St R Qd 189; Scales’ case (1962) 107 CLR 9.

92.

[2005] NSWCA 361 at [110].

93.

[2006] NSWCA 262 at [22].

94.

[2008] NSWCA 288.

95.

Ibid at [101].

96.

Scales’ case (1962) 107 CLR 9; Shearer v Public Trustee [1998] NSWSC 1007; Hogan v Clarke [2002] NSWSC 386; Monaco v Keegan [2006] NSWSC 825; Ford v Simes [2008] NSWSC 1120, affirmed on appeal [2009] NSWCA 351; Hansen v Hennessey [2014] VSC 20; Morris v Smoel [2014] VSC 32; and Underwood v Gaudron [2014] NSWSC 1055. An application was dismissed in Andrew v Andrew [2011] NSWSC 115 but the decision was overturned by the Court of Appeal in [2012] NSWCA 308. One of the appeal judges supported the trial judge’s decision. On the appeal from Bourke v Keep [2011] NSWSC 88, a case where another judge might well have dismissed the application on the ground of a 38-year estrangement, the Court of Appeal (in Keep v Bourke [2012] NSWCA 64) merely reduced the quantum of the order. These cases illustrate the fine line between acceptance and dismissal in cases involving estrangement. Relief was also denied in the case of a disabled son in Charlesworth v Herring [2007] NSWSC 312.

97.

Foley v Ellis [2008] NSWCA 288 at [102].

98.

Palmer v Dolman [2005] NSWCA 361; Howe v Lowry [2009] NSWSC 451.

99.

Booth v Booth [2002] NSWSC 836; Menaker v Kutylov [2006] NSWSC 374; McDougall v Rogers [2006] NSWSC 484; Cassaniti v Cassaniti [2008] NSWSC 258; Tiedeman v Tilse [2009] NSWSC 234.

100. Barrass v Kaine [1999] NSWSC 245; Rhodes v Pounsbury [2003] NSWSC 636; Rowley v Bouwmeester [2005] TASSC 34; Bentley v Brennan [2006] VSC 113; Lawrence v

Campbell [2007] NSWSC 126; Cameron v Cameron [2009] SASC 27; Kennard v Sheehan [2010] NSWSC 882; Evans v Levy [2010] NSWSC 504; Williamson v Williamson [2011] NSWSC 228. 101. Lawrence v Campbell [2007] NSWSC 126; Williamson v Williamson [2011] NSWSC 228. 102. Cameron v Cameron [2009] SASC 27; Evans v Levy [2010] NSWSC 504. 103. Barrass v Kaine [1999] NSWSC 245; Rowley v Bouwmeester [2005] TASSC 34; Rhodes v Pounsbury [2003] NSWSC 636. 104. [2006] VSC 113. 105. [2009] SASC 27 at [41]. 106. [2012] NSWCA 308. 107. Ibid at [21], [49], [50]. 108. Foley v Ellis [2008] NSWCA 288. 109. (1995) 37 NSWLR 703. 110. Ibid at 709. See Table 4.10 for further details of this case. 111. [1967] VR 881. 112. See NSW Act s 60(2)(k). 113. (1979) 143 CLR 134 at 156; 53 ALJR 249 at 257. 114. Based on ‘need’ and ‘moral claim’ (see immediately preceding text of judgment). 115. Worthington v Ongley (1910) 29 NZLR 1167; Re Joslin [1941] Ch 200; Re E [1966] 2 All ER 44; Re Sutton [1980] 2 NZLR 50. 116. See Allen v Manchester [1921] GLR 613 at 614. 117. Hughes v NTE&A (1979) 143 CLR 134; 53 ALJR 249; Hill v Wilson (1984) 114 LSJS 18; Sanders v Valtas [1999] NSWSC 1216. 118. Whalen v Byrnes [2003] NSWSC 915. 119. Re Rowe [1964] QWN 46; Re Assaff (1962) NZLJ 292; Bondelmonte v Blanckensee [1989] WAR 305; Marshall v Redford [2001] NSWSC 915. 120. Re Barron [1955] QWN 82; Coates v NTE&A (1956) 95 CLR 494; Re Buckland (No 2) [1967] VR 3; Kleinig v Neal (1980) 8 Fam LR 392; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Parente v Parente (1982) 29 SASR 310; McCullum v Permanent Trustee Co [1999] NSWSC 1219. 121. Scales’ case (1962) 107 CLR 9. For a criticism of this case, see Gorton v Parks (1989) 17 NSWLR 1. 122. [2002] NSWSC 167. 123. [1924] NZLR 673 at 686. 124. This view has wide acceptance. See Re Richardson (1920) SALR 24 at 46; Re Borthwick

[1949] Ch 395 at 400; Re Dalton [1952] GLR 230 at 232; Coates v NTE&A (1956) 95 CLR 494 at 509; Re Hokin [1959] VR 711 at 712; Re Saxon (1975) 12 SASR 110 at 115; King v White [1992] 2 VR 417 at 422. 125. [1956] CLY 9249. 126. Re Harris (1918) 18 SR (NSW) 303; 35 WN (NSW) 122; Mudford v Mudford [1947] NZLR 837; Re Campbell [1951] GLR 287; Re Izard [1954] NZLR 235; Re Crewe [1956] NZLR 315 at 324; Re Guthrie (1983) 32 SASR 86 at 96; Re Bunning [1984] 3 WLR 265; [1984] 1 Ch 480. 127. For example, a gift to the applicant’s children: see Re Baker [1962] NZLR 758 and the discussion of this case in 2.18. 128. Re Short [1954] NZLR 1149; Re Wright [1966] Tas SR (NC 1) 287. 129. Re Paulin [1950] VLR 462; Re Guthrie (1983) 32 SASR 86 at 96. 130. Close v Close [2001] NSWSC 668 at [42], [43]. 131. Some exceptions were provided for. 132. [1954] NZLR 1142. This case was cited with approval in Parker v Public Trustee NSW (SC(NSW) Eq Div, Young J, No 4567/87, 31 May 1988, unreported). 133. [1955] NZLR 511. 134. See Re Lawford [1954] NZLR 1142 at 1145. 135. See Re McGookin [1955] NZLR 511 at 514, 515. 136. [1961] NZLR 855. 137. See 2.28. 138. [1953] VLR 308 at 313. 139. [1963] Qd R 90. 140. [1971] SASR 63. 141. (1975) 11 SASR 571 at 574. 142. [1951] 2 TLR 1095; [1951] WN 599. 143. [1956] CLY 9249. 144. (1981) 7 Fam LR 97; cited with approval in Dickie v Dickie (SC(NSW) Eq Div, Gressier M, No 2652/84, 21 February 1986, unreported). 145. [1989] WAR 305. 146. (SC(NSW) Eq Div, Young J, No 4567/87, 31 May 1988, unreported); Sammut v Kleemann [2012] NSWSC 1030 at [137]; Hinderry v Hinderry [2016] NSWSC 780 at [116]. 147. (1997) ACL Rep 395 WA 13. 148. Roberts v Western Australian TE&A Co Ltd (1914) 17 WALR 27. 149. [1962] NZLR 758. This case was considered by Angel J in Ross v Public Trustee NT

(SC(NT), Angel J, Nos 9/95 and 74/95, 16 May 1996, unreported). 150. [2000] NSWSC 1028. 151. [2009] NSWSC 464. 152. [2009] NSWSC 1466. 153. [2010] TASSC 3. 154. [2015] NSWSC 1592. 155. Ross v Public Trustee NT (SC(NT), Angel J, Nos 9/95 and 74/95, 16 May 1996, unreported). Successful applications were also made in Horsburgh v White [2006] VSC 300 and Cangia v Cangia [2008] VSC 455. In the latter case, issues of credibility and high costs in a small estate had an adverse effect on the costs order. 156. Anderson v Teboneras [1990] VR 527 at 535; Mason v Permanent Trustee Co (1997) ACL 395 NSW 8; Ball v Smith [2008] NSWSC 1129 at [45]; Woodward v Holmes [2009] NSWSC 707. 157. Blanchfield v Johnson [2007] NSWSC 143 at [26]; Abrego v Simpson [2008] NSWSC 215; Marsh-Johnson v Hillcoat [2008] NSWSC 1337 at [69]; Wilson v Knight [2009] NSWSC 230 at [23]; Hyatt v Covalea [2011] VSC 334 at [128]; Estate of May Berry [2016] NSWSC 13 at [37], [38]. 158. Re Harrigan [2012] NSWSC 291 at [46]. 159. Ibid at [34]–[36]. 160. Bosch v Perpetual Trustee Co [1938] AC 463 at 478; Evans v Perpetual [2012] NSWSC 139 at [26]. 161. See 2.21. 162. [1973] 2 NZLR 359 at 362. 163. [1979] 2 NZLR 495 at 506. 164. The term ‘Crewe era’ refers to the long period during which the practice in the case of applications by widows was to limit provision to widowhood and/or to order an annuity rather than a lump sum. Re Crewe [1956] NZLR 315 was one of the last cases evidencing this approach. 165. [1985] 2 NZLR 88 at 92. 166. (1989) 17 NSWLR 1 at 11. 167. Andrew v Andrew [2012] NSWCA 308 at [16], [95]; Chapple v Wilcox [2014] NSWCA 392 at [12], [63], [64]. 168. Slack v Rogan [2013] NSWSC 522 at [125]; (2013) 85 NSWLR 253; Salloum v Assouni [2013] VSC 591 at [20], [21]; Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 at [326]; Stone v Stone [2016] NSWSC 605 at [46]. 169. (1962) 107 CLR 9. 170. See Gorton v Parks (1989) 17 NSWLR 1 at 6–11.

171. Such as Laird v Laird (1903) 5 GLR 466; Re Williamson [1954] NZLR 288; Re Wilson [1973] 2 NZLR 359 at 362; Boyce v Humphreys (1974) 48 ALJR 229 at 232; Shah v Perpetual Trustee Co (1981) 7 Fam LR 97; Hutchinson v Elders Trustee Co (1982) 8 Fam LR 267 at 270; and, in the case of second or subsequent wives, Diack v Public Trustee [1941] GLR 215 at 216; White v Barron (1980) 54 ALJR 333 at 338. 172. Re Bodman [1972] Qd R 281 at 284; Re Anderson (1975) 11 SASR 276 at 285; Re Vitch (1988) 147 LSJS 143. 173. [1917] NZLR 144. 174. [1940] St R Qd 290. 175. Re Duncan [1939] VLR 355 at 359. 176. [1977] Qd R 141. 177. (1980) 144 CLR 431; 30 ALR 51; 54 ALJR 333. See also Hughes v NTE&A (1979) 143 CLR 134 at 147–8 (Gibbs J); 53 ALJR 249 at 253 per Gibbs J; Bondelmonte v Blanckensee [1989] WAR 305 at 310 per Malcolm CJ. 178. (1980) 144 CLR 431 at 439; 30 ALR 51; 54 ALJR 333 at 336. See also Aickin J at (CLR) 439; (ALR) 58; (ALJR) 341. 179. (1987) 8 NSWLR 573 at 580. See also Dijkhuijs v Barclay (1988) 13 NSWLR 639 at 652. 180. (2004) 10 VR 69 at 79; [2004] VSCA 149. 181. Holmes v Permanent Trustee Co (NSW) (1932) 47 CLR 113 at 119; Re Hardgraves [1955] St R Qd 601 at 606 (FC); Coates v NTE&A (1956) 95 CLR 494 at 513; Worladge v Doddridge (1957) 97 CLR 1 at 9; Barns v Barns (2003) 214 CLR 169 at 187; 196 ALR 65. 182. Coates v NTE&A (1956) 95 CLR 494 at 517; Re Liston [1957] VR 50 at 51. 183. Re Phillips (1901) 4 GLR 192; Laird v Laird (1903) 5 GLR 466 at 467; Wilkinson v Wilkinson (1904) 24 NZLR 156; Re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 969; 12 GLR 753; Ahearn v Ahearn [1917] St R Qd 167 at 170; Collins v Public Trustee [1927] GLR 390 at 391; Re Williamson [1954] NZLR 288 at 300; Hawkins v Prestage [1989] 1 WAR 37 at 47. 184. Re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 969; 12 GLR 753; Re the TFM Acts (1916) 12 Tas LR 11; Re Harris (1918) 18 SR (NSW) 303 at 307; Re Richardson (1920) SALR 24 at 42; Honeyfield v Rielly [1934] GLR 521; Bosch v Perpetual Trustee Co [1938] AC 463 at 477, 478; Re Duncan [1939] VLR 355 at 360; Re Archibald [1950] QWN 2; Re Hardgraves [1955] St R Qd 601 at 608; Coates v NTE&A (1956) 95 CLR 494; Re Stanfield (1961) 37 NZLJ 19 at 20; Re Assaff (1962) NZLJ 292 at 293; Re Raybould [1963] Qd R 188 at 194; Re Buckland [1966] VR 404 at 409; Hughes v NTE&A (1979) 143 CLR 134 at 146– 7; 53 ALJR 249 at 253; Anderson v Teboneras [1990] VR 527 at 534; Kembrey v Cuskelly [2008] NSWSC 262 at [46]; Leyden v McVeigh [2009] VSC 164. 185. Re K [1921] St R Qd 172 at 175; Re Hokin [1959] VR 711 at 712. 186. In particular 2.20–2.24. 187. (1960) 104 CLR 124; Testator’s Family Maintenance and Guardianship of Infants Act

1916 (NSW). 188. Blore v Lang (1960) 104 CLR 124 at 135. 189. Ibid at 134. 190. (1910) 29 NZLR 959; 12 CLR 753. 191. Ibid at (NZLR) 975. 192. (1939) 41 WALR 66. 193. Ibid at 72. 194. [2016] NSWSC 947 at [5]. 195. As to which see 5.8. 196. See 4.4. 197. See 4.47. 198. Re Brown [1952] St R Qd 47 at 49, 50; Re Theaker [1955] QWN 51; Coates v NTE&A (1956) 95 CLR 494 at 507; Re De Feu [1964] VR 420 at 427, 428; Re Bodman [1972] Qd R 281; Re McCaffrey (1982) 29 SASR 582 at 585; Wall v Crane [2009] SASC 382 at [16]. 199. Re Brown [1952] St R Qd 47; Re Hodgson [1955] VLR 481 at 489; Re Short [1954] NZLR 1149; Re Izard [1954] NZLR 234 at 237; Coates v NTE&A (1956) 95 CLR 494 at 509; Re Shanahan [1957] NZLR 602; Dun v Dun [1959] AC 272 at 285; Re De Poli [1964] NSWR 424 at 425; Re Z [1979] 2 NZLR 495 at 505; White v Barron (1980) 144 CLR 431 at 441; 54 ALJR 333 at 337; Re Ling (1992) ACL Rep 395 Qld 24; In re MacKinnon [2002] TASSC 3; Nicholls v Hall [2007] NSWCA 356 at [40]. 200. NSW Act ss 59(1)(c) and 60(2) (NSW 1982 Act s 9, particularly s 9(2) and (3)). 201. Rowe v Lewis (1907) 26 NZLR 769; Re Read [1910] VLR 68. 202. Barker v Westminster Trust Co (1941) 4 DLR 514 per MacDonald J; Re MacMaster (1957) 10 DLR (2nd) 436; Whyte v Ticehurst [1986] 2 All ER 158; McEvoy v Public Trustee (1989) 16 NSWLR 92 at 100. 203. Re Shannon (1935) 35 SR (NSW) 516. Kearney J in Adames v Ruhl (SC(NSW) Eq Div, Kearney J, No 3892/83, 8 March 1985, unreported); Read v Nicholls [2004] VSC 66; and Groser v Equity Trustees Ltd (2008) 19 VR 598 at 608 regarded Re Shannon as correctly decided. However, it was criticised as probably wrongly decided in McEvoy v Public Trustee (1989) 16 NSWLR 92 at 100. 204. Re McCaffery (1931) 4 DLR 930; Re Hawke [1957] NZLR 152; Re Shrimpton [1962] NZLR 1000; Re Findlay (1964) NZLJ 170; In the Estate of Wardle (1979) 22 SASR 139; 5 Fam LR 385. The relevant survival legislation is as follows: Law Reform (Miscellaneous Provisions) Act 1955 (ACT) ss 4–8; Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2; Law Reform (Miscellaneous Provisions) Act 1966 (NT) ss 5–9; Succession Act 1981 (Qld) s 66; Survival of Causes of Action Act 1940 (SA); Administration and Probate Act 1935 (Tas) s 27; Administration and Probate Act 1958 (Vic) s 29(1); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4.

205. Sugden v Sugden [1957] P 120; [1957] 1 All ER 300; Whyte v Ticehurst [1986] 2 All ER 158 at 161. 206. Re Hawke [1957] NZLR 152. 207. [1961] VR 264. This view was accepted as correct in McLeod v Johns [1981] 1 NSWLR 347 at 349. 208. [1957] NZLR 152. 209. (1935) 35 SR (NSW) 516. 210. [1968] VR 540. 211. (1979) 22 SASR 139; 5 Fam LR 385. 212. Ibid at (Fam LR) 390. 213. Preece, para 13.320. 214. [1961] VR 264. 215. [1968] VR 540. 216. (1989) 16 NSWLR 92 at 102; but this case must be read in the context of the NSW Act whereby the court is required to be satisfied, inter alia, that the applicant ‘is an eligible person’ and to have regard to the circumstances as they exist at the date of the hearing: ibid at 100, 101. 217. [1941] 4 DLR 514 at 517. 218. Peebles v Oswaldtwistle Urban District Council [1896] 2 QB 159; (1896) 65 LJQB 499. See also Barker v Westminster Trust Co [1941] 4 DLR 514 at 517. 219. Re MacMaster (1957) 10 DLR (2d) 436 at 440. 220. King v Condon [2009] 2 Qd R 143; [2009] QSC 67; Underwood v Underwood [2009] QSC 107; Strain v Walsh [2011] QDC 165. 221. As to which, see Blore v Lang (1960) 104 CLR 124. 222. McEvoy v Public Trustee (1989) 16 NSWLR 92. 223. Groser v Equity Trustees Ltd (2008) 19 VR 598; [2008] VSC 598. 224. Re Shrimpton [1962] NZLR 1000 at 1004; Re Findlay (1964) NZLJ 170; In the Estate of Wardle (1979) 22 SASR 139; 5 Fam LR 385 at 390. 225. (1964) NZLJ 170. 226. Re Butler (1923) 23 SR (NSW) 540. 227. See 4.25. 228. See 4.32. 229. See 4.29–4.31. 230. Z Liu, Australian Institute of Health & Welfare, 1996, p 23, Table 4.4. 231. Coffey v Bennett [1961] VR 264; McEvoy v Public Trustee (1989) 16 NSWLR 92 at 102.

232. Bankruptcy Act 1966 (Cth) s 18; and see McDonald, Henry and Meek, Australian Bankruptcy Law & Practice, Law Book Co, looseleaf at [62]. 233. [2013] VSC 596. 234. Re Crowley [1949] St R Qd 189; and see 8.20. 235. Coffey v Bennett [1961] VR 264 at 266; McLeod v Johns [1981] 1 NSWLR 347 at 349. 236. [1999] 3 VR 803 at 822. This reasoning parallels that in cases of applicants who are intellectually disabled (see Re Duff (1948) 48 SR(NSW) 510; and 4.51) and those who are insolvent or almost certainly so (see Caska v Caska [1999] NSWSC 289). 237. (1990) 170 CLR 306. For the position regarding bankrupt beneficiaries generally, see 8.20. 238. NT Act s 8(3); Qld Act s 41(2)(c); SA Act s 7(3); Tas Act s 8(1); WA Act s 6(3). 239. ACT Act s 8(3)(a); NSW Act s 60(2)(m) (NSW 1982 Act s 9(3)(b)). 240. Vic Act s 91(4)(o). 241. NSW Act s 60(2)(m) and (n). 242. As to which, see 2.6–2.12. 243. [1967] VR 91 at 92. 244. McGrath v Queensland Trustees [1919] St R Qd 169; Re Gilbert (1946) 46 SR (NSW) 318; Re Worms [1953] NZLR 924; Re Williams [1953] NZLR 151; Re Jackson [1954] NZLR 175; Re Neagle (1957) 33 NZLJ 280; Re McNaught (1959) NZLJ 257; Re Ward [1964] NZLR 929 at 935; Re S [1975] VR 47 at 56; Re Mercer [1977] 1 NZLR 469; McColl v McComish (1995) ACL Rep 395 WA 12; Wheatley v Wheatley [2006] NSWCA 262; Goldberg v Landerer [2010] NSWSC 1431. 245. See cases referred to in note 244 and 2.12. 246. (1946) 46 SR (NSW) 318 at 321. Followed in Pengilley v Public Trustee (SC(NSW) Eq Div, Young J, No 3824/84, 9 October 1985, unreported). 247. Re Gilbert (1946) 46 SR (NSW) 318 at 326 per Maxwell J. 248. NSW Act s 60(2)(m). 249. Foley v Ellis [2008] NSWCA 288 at [3]; Diver v Neal [2009] NSWCA 54 at [10]. 250. [1956] St R Qd 153. 251. Re Hardgraves [1955] St R Qd 601 (FC). 252. Ray v Moncrieff [1917] NZLR 234. See also 4.35. 253. Hunter v Hunter (1987) 8 NSWLR 573 referred to in 4.35. 254. See the cases referred to in note 244 above. 255. McGrath v Queensland Trustees [1919] St R Qd 169. 256. Re De Poli [1964] NSWR 424.

257. Re Kennedy [1920] VLR 513 at 515. 258. See, generally, cases referred to in notes 244 and 256. 259. (1994) 35 NSWLR 182. 260. Murphy v Stewart [2004] NSWSC 569. 261. Draper v Nixon [1999] NSWSC 629. 262. See 2.34. 263. [2009] NSWSC 378. 264. Re McGoun [1910] VLR 153. 265. Ibid; Re TM [1929] QWN 2; Packer v Dorrington [1941] GLR 337; Re Wollard [1953] SASR 173; Re De Feu [1964] VR 420. 266. Re Scott [1950] VLR 102. 267. Coates v Thomas [1947] NZLR 779. 268. Re Ruxton [1946] VLR 334. 269. [2005] NSWSC 1216. 270. NSW Act s 60(2)(m). Under the NSW 1982 Act, which applied in McIntyre v McIntyre [2005] NSWSC 1216, the relevant section (s 9(3)(b)) had the same effect. 271. Re Chernoff Estate (1960) 32 WWR 473 at 476. 272. (1929) 29 SR (NSW) 10. 273. [1971] 1 All ER 497. 274. [1920] VLR 513 at 515. 275. Re Jackson [1954] NZLR 175. 276. Re Johnstone [1962] Tas SR 356. 277. Re Wilson [1956] NZLR 373. 278. Delacour v Waddington (1953) 89 CLR 117. 279. Re Chernoff Estate (1960) 32 WWR 473. 280. Toner v Lister [1919] GLR 498; Re Dingle (1921) 21 (NSW) 723 at 726; Re Knight [1939] GLR 673 at 677; Re Bradbury [1947] St R Qd 171; Re Scott [1950] VLR 102 at 107; Re Johnstone [1962] Tas SR 356. 281. Re Roberts [1919] VLR 125; Re Kennedy [1920] VLR 513; Re Gregory [1971] 1 All ER 497. 282. Re De Poli [1964] NSWR 424. 283. Re Vines [1939] St R Qd 68. 284. Paxton v Nicholson [1918] GLR 393; Re McKinney [1963] NSWR 993. 285. Toner v Lister [1919] GLR 498; Re Birch (1920) 42 ALT 39; Re Ruxton [1946] VLR 334; Re Williams [1953] NZLR 151.

286. McGrath v Queensland Trustees [1919] St R Qd 169. 287. Re Gilbert (1946) 46 SR (NSW) 318. 288. Re Worms [1953] NZLR 924; Re B (1967) NZLJ 505. 289. Re McNaught (1959) NZLJ 257. 290. [2010] NSWCA 359 at [95]. 291. [2010] NSWSC 845 at [84]. 292. Murphy v Stewart [2004] NSWSC 569; Christie v Christie [2016] WASC 45. 293. Re Hallahan (1918) 18 SR (NSW) 138; Re Duncan [1939] VLR 355; Re Hardgraves [1955] St R Qd 601. 294. [1951] NZLR 135. 295. (1990) ACL Rep 395 NSW 9. 296. [2008] NSWSC 1120, affirmed on appeal [2009] NSWCA 351. 297. [2008] NSWSC 1310 (CA). 298. Ibid at [40]. 299. [2009] NSWSC 464. 300. [2009] NSWSC 1105. 301. [2012] NSWSC 276. 302. Re K [1921] St R Qd 172. 303. See 2.10. 304. Re Theaker [1955] QWN 51; Re S [1975] VR 47. 305. Wenn v Howard [1967] VR 91. 306. Re Harris (1918) 18 SR (NSW) 303. 307. Re Cooper [1970] 2 NSWR 182. 308. Re Avenell (1991) 13 QL Rep 5. 309. [1939] VLR 355. 310. [1921] St R Qd 172. 311. Re Ruxton [1946] VLR 334 at 335; Re Scott [1950] VLR 102 at 105; Re Jackson [1954] NZLR 175 at 178; Re Ward [1964] NZLR 929 at 933. 312. [1951] NZLR 135; [1951] GLR 50. 313. [1951] NZLR 135 at 141; [1951] GLR 50 at 52. 314. Ibid. 315. Family Protection Act 1955 (NZ) s 5(1). 316. Re Ruxton [1946] VLR 334 at 335; Re Scott [1950] VLR 102 at 105.

317. See 2.38. 318. Re Green [1951] NZLR 135 at 141; [1951] GLR 50 at 52; Re Ward [1974] NZLR 929 at 933. 319. Qld Act s 44(2). 320. Parish v Parish [1924] NZLR 307; Lieberman v Morris (1944) 69 CLR 69. 321. Re Willert [1937] QWN 35. 322. Re Hatte [1943] St R Qd 1. 323. Re Doogan (1923) 23 SR (NSW) 484; Re Found [1924] SASR 236; Re Howard (1925) 25 SR (NSW) 189; Re Patrick (1936) 36 SR (NSW) 156. 324. Gardiner v Boag [1923] NZLR 739; Parish v Parish [1924] NZLR 307 (FC); Hooker v Guardian Trust and Executors Co of New Zealand [1927] GLR 536. 325. Re Doogan (1923) 23 SR (NSW) 484; Lieberman v Morris (1944) 69 CLR 69. 326. Gardiner v Boag [1923] NZLR 739. 327. Parish v Parish [1924] NZLR 307 at 319. 328. For similar clauses in other legislation, see ACT Act s 19; NT Act s 19; Qld Act s 41(11); SA Act s 13; Tas Act s 8(2); WA Act s 19. 329. Re Pearson [1936] VLR 355; Re Willert [1937] QWN 35; Re Hatte [1943] St R Qd 1. 330. [1941] AC 294 at 303. 331. Lieberman v Morris (1944) 69 CLR 69 at 83 (Latham CJ), 89 (McTiernan J) and 93 (Williams J). 332. Smith v Smith (1986) 161 CLR 217 at 235, 249; 66 ALR 1 at 15, 25, the relevant section being s 95 of the NSW Act. Under s 95(2) of that Act, a party may waive his or her rights under the Act with the court’s approval. This is discussed in 2.48. 333. Daebritz v Gandy (2001) ACL Rep 395 WA 5; Barns v Barns (2001) 80 SASR 331. See also Re M deceased [1968] P 174. 334. Re Pearson [1936] VLR 355 at 359; Re Hatte [1943] St R Qd 1 at 14. 335. Re Found [1924] SASR 236; Re Patrick (1936) 36 SR (NSW) 156. 336. Re Little (1995) 16 QL Rep 39 at 43. 337. This part of the text has been kindly provided by the NSW editor. 338. Other references to legislation in this paragraph are to the NSW Act. 339. Section 95 is in the similar terms to the provisions of s 31 of the NSW 1982 Act. 340. See, for example, Re RB, a protected estate family settlement [2015] NSWSC 70. 341. Neil v Jacovou [2011] NSWSC 87 at [64] citing Mulcahy v Weldon [2001] NSWSC 474 at [10]. 342. Neil v Jacovou, ibid, citing Russell v Quinton [2000] NSWSC 322 at [70]. 343. Neil v Jacovou, ibid, at [65] — a case where approval of release was sought in relation

to an agreement made five years previously. 344. Oxley v Oxley [2014] NSWSC 1606 at [18] citing McMahon v McMahon (SC(NSW), Young J, 2 August 1985, unreported). 345. Bartlett v Coomber [2008] NSWCA 100 at [91] per Bryson AJA; and see generally Oxley v Oxley, ibid. 346. [2014] NSWSC 1922. 347. [1960] VR 640. 348. (1978) 19 SASR 247. 349. (SC(Qld), Ryan J, OS No 607/87, 9 September 1987, unreported). 350. (1981) 7 Fam LR 97. 351. [2013] NSWSC 1935 at [32]–[44]. 352. This section of the text is substantially the work of the NSW editor. 353. References to legislation in this section are to the NSW Act. 354. See s 63(3) and (5). 355. For a survey of the differences see Wardy v Salier [2014] NSWSC 473 at [87] et seq. 356. See s 80(2)(a)–(c) of the NSW Act. Under the repealed NSW 1982 Act, these transactions were referred to as ‘prescribed transactions’. 357. As has been noted, notional estate may also include property of the estate that has been distributed by the legal representative of the estate — see s 79; this is discussed further below. 358. Section 75(2) provides that the fact a person has entered into a relevant property transaction affecting property does not prevent that person from being taken to have entered into another relevant property transaction if the person subsequently does, or does not do, an act affecting the same property the subject of the first transaction; and the making of a will by a person, or the omission of a person to make a will, does not constitute a relevant property transaction, except in so far as it constitutes a failure to exercise a power of appointment or disposition in relation to property that is not in the person’s estate. 359. See s 76(3). 360. Kastrounis v Foundouradakis [2012] NSWSC 264 at [95] — this case conducts a thorough examination of the notional estate provisions; see also Kelly v Deluchi [2012] NSWSC 841. 361. Ibid at [96]. 362. Cf s 22(1)(b) of the repealed NSW 1982 Act. 363. See the discussion in Kastrounis, ibid, at [97] et seq. 364. Ibid at [99]; although, where the party prima facie establishes that full valuable consideration has not been given, the evidential onus will pass to the other party

to establish that there was, in truth, consideration given and the extent of that consideration. 365. In Wardy v Salier [2014] NSWSC 473 at [115], the view was expressed that the expression ‘with the result that’ does not mean ‘that the omission to exercise a power must be the sole cause of property becoming held by another person or subject to a trust or to another person becoming, or continuing to be, entitled to exercise the power. In my view, a contributing cause is sufficient. The use of the definite article in describing the causal relationship does not imply that the omission must be the sole cause of the outcome, be it a change in the holding of the property or a continuation of the holding of property.’ In his discussion White J distinguished the observations of Mason P in Kaverlee v Burbidge (1988) 43 NSWLR 422 (which was a decision under the NSW 1982 Act) and pointed out the differences of the wording in the current legislation. 366. A person is not given full or any valuable consideration for not severing an interest in property held as joint tenant merely because by not severing the interest, the person retains, until his or her death, the benefit of the right of survivorship in respect of that property. 367. See s 80(2)(a) and as to what amounts to ‘intention’ see Kastrounis v Foundouradakis [2012] NSWSC 264 at [108]–[112]. 368. See s 80(2)(b) as to what amounts to ‘moral obligation’ and ‘substantially’; see Kastrounis, ibid, at [113]–[119]. 369. See s 80(2)(c). 370. (2014) 85 NSWLR 619. 371. NSW Act s 87(b). 372. NSW Act s 89(2). 373. NSW Act s 87. 374. Kavalee v Burbidge (1998) 43 NSWLR 422; Schaeffer v Schaeffer (1994) 36 NSWLR 315. 375. Kavalee v Burbidge (1998) 43 NSWLR 422 at 443. 376. Kavalee v Burbidge (1998) 43 NSWLR 422. 377. See, for example, Wade v Harding (1987) 11 NSWLR 551 and Cameron v Hills (SC(NSW), Needham J, 26 October 1989, unreported). But see also Cetojevic v Cetojevic [2007] NSWCA 33 and Vaysbakh v Vaysbakh [2007] NSWSC 1223. 378. (SC(NSW), Bryson J, No 3748/89, 14 June 1991, unreported); (CA(NSW), No 40370/91, 3 March 1992, unreported). 379. Bryson J at [107]. 380. Ormsby v Ormsby (1991) ACL Rep 395 NSW 13. 381. See Superannuation Industry (Supervision) Act 1993 (Cth) s 59(1A). 382. Ibid.

383. Under s 109 of the Commonwealth Constitution, namely, if there is an inconsistency, the Commonwealth law will prevail and the state law, to the extent of the inconsistency, shall be invalid. 384. [2002] NSWSC 1217. 385. Ibid at [88]. 386. [1999] NSWSC 1041. 387. [2006] NSWSC 1252 at [23]. 388. [1999] NSWSC 860 at [51]. 389. See s 87. 390. NSW Act s 90(2)(b). It should be noted that Cohen J, in Dare v Furness (1998) 44 NSWLR 493 at 503, read s 28(5) as precluding the court from making an order designating property as notional estate unless ‘either’ paragraph (c) or (d) of the subsection was satisfied. For a case involving a successful application under s 28(5) (d) of the NSW 1982 Act (now s 90(2)(b) of the NSW Act) see Campbell v ChabertMcKay [2010] NSWSC 859. 391. See Lewis v Lewis [2001] NSWSC 321. 392. [2006] NSWSC 431. 393. NSW Act s 99. 394. See the Committee’s Supplementary Report of July 2004 (Queensland Law Reform Commission Report 58, Ch 3). 395. The phrase ‘natural objects of testamentary recognition’ comes from Re Fulop (1987) 8 NSWLR 679 at 681. The first group applied under s 7 of the NSW 1982 Act and now apply under s 59(1)(a) of the NSW Act. 396. See 4.14. 397. These persons applied under s 9 of the NSW 1982 Act and were described in s 6(1)(c) and (d) of that Act. They now apply under s 59(1)(b) of the NSW Act and are described in s 57(1)(d), (e) and (f) of that Act. 398. See 4.36. 399. See 4.69. 400. See 4.70. 401. See 4.72. 402. NSW Act s 59(1)(b). 403. (1988) 13 NSWLR 241. 404. Ibid at 254. 405. (1987) 8 NSWLR 679 at 681. 406. (1988) 13 NSWLR 241 at 242, 244.

407. (1987) 8 NSWLR 679 at 681. 408. [1998] NSWCA 44 at [7]. 409. [2006] NSWSC 764 at [14]. His Honour expressed the same view in Coates v Public Trustee [2007] NSWSC 647 at [7]; Davis v Fordham [2008] NSWSC 182 at [44]; and Carragher v Crook [2009] NSWSC 191 at [54]. 410. [2002] NSWSC 648. 411. [2007] NSWSC 686. 412. [2009] NSWCA 54 at [8]. 413. [2012] NSWSC 276. 414. Sassoon v Rose [2013] NSWCA 220 at [15]. 415. Doshen v Pedisich [2013] NSWSC 1507 at [81]. 416. Ibid. 417. Emery v Clough (1886) 63 NH 552; 4 A 796; Re Korvine’s Trusts [1921] 1 Ch 343. 418. Qld Act s 41(12). 419. Winkworth v Christie Manson & Woods [1980] 1 Ch 496. 420. [1775] 98 ER 1120 (quoted from Fletcher v Furnance [2008] NSWSC 132 at [48]). 421. [2008] NSWSC 132. 422. [2008] NSWSC 978. 423. Ibid at [45]. 424. [1933] NZLR 477; [1933] GLR 415. 425. [1953] NZLR 530; [1953] GLR 214. 426. [1966] Qd R 96 at 112, 113. 427. [1987] 2 Qd R 394. 428. [2015] VSC 128 at [29]. 429. SA Act s 8(6). 430. SA Act s 8(4). 431. Blunden v Blunden [2008] SASC 286. 432. [2015] SASC 34. 433. Bickford v Bickford [2006] WASC 268. 434. Fisher v Thomson [2006] NSWSC 527. 435. [2010] NSWSC 59. 436. Tchadovitch v Tchadovitch [2010] NSWCA 316 at [60]. 437. Ibid at [68].

438. Ibid at [73]. 439. Ibid at [74]. 440. See Family Law Act 1975 (Cth) ss 90A–90Q and 90UA–90UN. 441. Singer v Berghouse (1994) 181 CLR 201; 68 ALJR 653; 18 Fam LR 94 is a case in point. 442. Lieberman v Morris (1944) 69 CLR 69 at 83, 89, 93; Smith v Smith (1986) 161 CLR 217 at 235, 249; 66 ALR 1 at 15, 25. 443. Singer v Berghouse (1994) 181 CLR 201 at 207, 217; 68 ALJR 653; 18 Fam LR 94. 444. Vigolo v Bostin (2005) 221 CLR 191 at 230; Hills v Chalk [2008] QCA 159 at [44], [46] per Keane JA. 445. This phrase comes from Singer v Berghouse (1994) 181 CLR 201 at 210; 68 ALJR 653; 18 Fam LR 94. 446. (1994) 181 CLR 201 at 207. 447. [2008] QCA 159 at [46]. 448. Ibid at [209]. 449. Ibid at [44] per Keane JA. 450. Kozak v Matthews [2007] QCA 296. 451. Hills v Chalk [2008] QCA 159; Craig v Craig [2015] WASC 109. 452. Singer v Berghouse (1994) 181 CLR 201; 68 ALJR 653; 18 Fam LR 94 where the division was 3:2. 453. [2002] VSC 279. 454. [2011] NSWSC 87. 455. Warren v McKnight [1996] NSWSC 419; Harris v Bennett [2002] VSC 139 at [26]–[31]; 8 VR 411 at 421. 456. Unsuccessful ones include Banks v Seeman [2008] QSC 202; Atthow v McElhone [2010] QSC 177; Mills v State Trustees Ltd [2012] VSC 614; Catelan v Herceg [2012] QSC 320; Wolff v Deavin [2012] NSWSC 1315; Jensen v Jensen [2014] VSC 432; Keating v Jensen [2014] VSC 433; Yesilhat v Calokerinos [2015] NSWSC 1028; Vickers v Pickering [2016] QDC 58. 457. [2011] VSC 32 at [11]. See also Snow v Snow [2015] NSWSC 90. 458. Yesilhat v Calokerinos [2015] NSWSC 1028 at [12]. 459. Vickers v Pickering [2016] QDC 58 at [39]. 460. Hitchcock v Pratt [2010] NSWSC 1508 at [48]. 461. Higgins v Higgins [2005] QSC 110; Qd R 502; Thurlow v Thurlow [2015] NSWSC 1323. 462. Crandon v Crandon [2014] QSC 93. 463. Jackson v Newns [2011] VSC 32.

464. Snow v Snow [2015] NSWSC 90. 465. Stojanovski v Stojanovski [2013] NSWSC 1491. 466. (SC(NSW), Holland J, 18 December 1979, unreported). 467. [2009] NSWCA 109 at [48]; (2009) 2 ASTLR 235 at [48]. 468. See, for example, Abrego v Simpson [2008] NSWSC 215; Cross v Wasson [2009] NSWSC 378; Thomas v Pickering [2011] NSWSC 572; Johnson v Wright [2012] NSWSC 879; Kowalski v Kowalski [2012] QCA 234. 469. [2009] NSWSC 378.

[page 79]

Approach in Particular 3 Circumstances Introduction 3.1 As indicated in Chapter 2,1 all of the circumstances of the case must be considered in the decision-making process in family provision applications. However, it is possible to identify estates of a particular type where a commonality of approach is evident. A consideration of types of estate is a useful preliminary to the discussion of particular classes of applicant in Chapter 4.

Intestacy 3.2 When the legislation was first introduced, the concept of allowing an application in the case of an intestacy was foreign to New Zealand, all states and territories of Australia, and the United Kingdom. The first jurisdiction to introduce legislation allowing such applications was New South Wales. This occurred in 1938;2 however, the only person who could apply was a widow. In 1943, Queensland allowed claims by ex-nuptial children.3 When the necessary amending Acts in other jurisdictions were made, no restriction was placed on who could apply.4 Queensland and New South Wales followed this approach in 1968 and 1982 respectively.5

Under the New Zealand Statutes Amendment Act of 1939, the Family Protection Act 1908 Pt II was to apply with respect to every person who [page 80] died intestate ‘in the same manner as if he had died leaving a will providing for the distribution of his estate as on an intestacy’. It was no doubt this statutory provision which caused Kennedy J to say in Diack’s case:6 ‘She has on an intestacy and therefore fictionally as if by will. …’ This statutory formula was not repeated in the Family Protection Act 1955 (NZ) and it has not been adopted elsewhere. The concept of the fictional will was adopted in Re Russell,7 where Lucas J said: It seems to me that the most practical way to look at the matter is to imagine that the deceased had made a will whereby he directed that his estate should be distributed as on intestacy, and then to consider the needs and moral claims of the persons who benefit from a distribution in this manner.

His Honour also suggested that there was a possibility that the deceased may have chosen to die intestate. Smith J also alluded to such a possibility in Re Wren.8 The concept of the fictional will has much to commend it and is one likely to be adopted by most judges. However, the concept may break down where there is no known living person with a claim on the testator’s bounty.9 There can be no doubt that, as Lucas J remarked in Re Russell:10 ‘The fact that the distribution is statutory is not a fact which assumes any particular importance.’ A consideration of the authorities shows that this statement forms the basis of the decisions even though no reference is made to it.11 Table 3.1 digests cases involving applications in intestate

estates. [page 81]

[page 82]

[page 83]

[page 84]

[page 85]

Family farms 3.3 In ‘family farm’ cases, a common feature is that many testators leave the farm to one or two (occasionally three) sons, and other siblings receive either a small legacy or nothing out of the estate.12 Sometimes there is a prior life interest to the surviving spouse.13 There are many reasons for this, for example: the desire to keep the farm in the family; the need to reward the son or sons who have worked the farm for many years on a low income, usually on the understanding that one day he or they would inherit the farm; the need to provide the surviving spouse with a retirement income; the farm may be heavily mortgaged and giving an equal share to each child would force the sale of the farm; and the farm may be too small to subdivide. It has been said that the older cases (that is, those decided before 1985) tend to favour the son who has been left the family farm, and orders in favour of others, if made, tend to be modest.14 There is much truth in this statement. If one takes reported cases up to 1985, orders in favour of adult siblings have only averaged about 9% of the estate per sibling.15 An order making provision at an amount greater than 20% of the estate occurred in only one case.16 In no case was the amount of the order high enough to force a sale of the farm. Decisions on family farms do not involve the application of any special principle. However, it is a feature of these cases that the residence or residences of the applicant and one or more beneficiaries and the farming business utilise the same piece of land. In addition, one finds that in typical cases, the competing claims are usually very

[page 86] strong. Any large order is likely to force the relocation of those whom the deceased had a moral obligation to support. It has been suggested that recent Western Australian cases, such as White v Chamber17 and Worthington v Dickson,18 represent a change in attitude by the courts, reflecting a change in community attitudes to the family farm.19 It is true that orders have increased slightly in recent years but in our view not because of a change in community attitudes to the family farm. The perceived increase has been caused by orders in Western Australia in several cases which could be described as atypical.20 If the Western Australian cases are excluded and typical ones only are considered, the pre-1985 average is 9.9% and the post-1985 average is 8.89%. The cases from which we draw this conclusion are set out in Table 3.2. We acknowledge that our judgment on what can be regarded as a typical case in this area is open to considerable argument and accept that other analyses might lead to quite different results or conclusions. That said, in what we have regarded as typical cases in Table 3.2, 63% of orders are for amounts less than 10% of the estate and 80% of orders are for amounts less than 13% of the estate. The average is 9.5%. These figures are in themselves of little particular interest. However, we believe that they support the proposition that orders in typical family farm cases tend to be modest.

Table 3.2

Orders in typical family farm cases

Before 1985 Order as % of estate

1

Re Hughes [1930] St R Qd 329

17.7

2

Re Hatte [1943] St R Qd 1 (FC)

7.6 (A1) 8.1 (A2)

3

Re Hodgson [1955] VLR 481

4.2

4

McCosker v McCosker (1957) 97 CLR 566

11.5

5

Re Hokin [1959] VR 711

12.9

6

Re Cooper [1970] 2 NSWR 182

12.3

7

Re Lintern (1982) 98 LSJS 202

3.5 (A1) 6.9 (A2) 4.3 (A3) 1.7 (A4) 16.4 (A5)

8

Re Guthrie (1983) 32 SASR 86

21.4

Average

9.9 [page 87]

Since 1985 Order as % of estate 1

Hunter v Hunter (1987) 8 NSWLR 573

7

2

Re Britcher (Qld, 1987, unreported)

21

3

Re Mayne (Qld, 1992, unreported)

20

4

Re McIntyre [1993] 2 Qd R 383

5

Re Monshing [2003] VSC 498

6

Brinkotter v Pelling [2006] VSC

6 9 (A1) 7.5 (A2) 8.4

101 7

Vincent v Rae [2006] VSC 346

8

Frey v Frey [2009] QSC 43

9

Torney v Shalders [2009] VSC 268

7.6 10.5 3.32 (A1) 3.32 (A2) 6.48 (A3)

10 O’Donnell v Gillespie [2010] QSC 22

5.38

11

2.46

Salmon v Osmond [2015] NSWCA 42 Average

8.43

As we have indicated, in our view the Western Australian cases show high orders simply because they are not typical cases. They do not support the argument that the courts in Western Australia are more generous in farming cases than those in the other states and territories. The amounts ordered tend to reflect a desire on the part of the court not to threaten the integrity of the farm. Some judges have expressed such a view openly.21 From the orders made in other cases, it may be argued that the desire not to threaten the integrity of the family farm is shared by many more judges. However, this would have been only one of the factors taken into consideration, and it would be wrong to suggest that in any particular case it was the sole determinant. The fact that the farm has been in the family for several generations is, of course, a factor which should be taken into account.22 [page 88]

The legislation does not identify the family farm for special treatment and there are no special rules which apply in these cases. As has been said many times, each case is determined on its own circumstances.23 However, there are common factors in these cases24 which tend to influence the result. It may well be that the strong moral claim of the son who inherits the farm is the major factor in many cases and results in limiting the provision which the court makes for other siblings. It is clear that the sons of farming parents do not have a right to inherit the farm to the exclusion of their siblings if proper provision has not been made for them.25 In proper circumstances, provision can be made by way of annuities or legacies charged on the farming property, or a legacy payable immediately, none of which threaten its viability. There is always a possibility that the effect of the order may be to force a sale of the farm. When discussing a daughter’s application in Re Guthrie,26 Bollen J observed: As I have said, a nice weighing of value between beneficiaries is to be avoided. But I do not think that, considered broadly, that impact can be ignored. Of course if the extent of [the applicant’s] need is so great that she should have a large order even at the expense of diminution in value of the residuary estate and even at the expense of sale of Myrtle Grove, then she must have a large order.

An order having this effect was made in White v Chambers.27 However, in that case, the son did not work the farm from his youth but merely returned there when his other occupation failed. Accordingly, his moral claim was substantially reduced. In Young v Young,28 Malcolm CJ pointed out that both White v Chambers and Worthington v Dickson were dependent on their own facts and circumstances, and did not indicate any particular principle. [page 89]

The court may find it necessary to seek its own expert to provide evidence of the farm’s viability and subdivision potential before forming a view as to any order.29 Table 3.3 digests cases involving a family farm. It will be noted that, as far as quantum is concerned, the table suggests that, in a typical case, provision will probably not exceed 10% of the estate where there is one sibling applicant30 and 20% (to be shared) if there is more than one. In any event, the amount is not likely to be such as to threaten the integrity of the farm. In the non-typical cases,31 larger orders can be expected because the factors that tend to restrict the quantum of orders in typical cases do not exist. There is no limit to the size of orders in these cases and any question of preserving the farm does not arise. [page 90]

[page 91]

[page 92]

[page 93]

[page 94]

[page 95]

[page 96]

[page 97]

[page 98]

[page 99]

[page 100]

[page 101]

[page 102]

[page 103]

Large estates 3.4 In large estates, an eligible applicant, whether a widow,32 an adult son or daughter,33 or an infant child,34 is often in the position of not being in need as most people would understand that term. However, as discussed in 2.5, this does not mean that such a person is excluded from applying. There can be no doubt that, in large estates, provision can be made for the well-to-do35 although the court must still consider what is ‘adequate’ and ‘proper’ in all the circumstances36 before it can have jurisdiction to make an order. However, in large estates, stress is placed more on the word ‘proper’ than on the word ‘adequate’, and ‘need’ is not so much for the necessities of life as for the appropriate needs of an applicant in that situation. Accordingly, provision might be made for an adult son where on the same facts, except for the size of the estate, it would not be made. Two recent cases that illustrate the relative nature of need in large estates are Colebatch v Colebatch37 and Chatard v Bowen.38 In Colebatch’s case the applicant was a Senior Staff Specialist Neurologist at the Prince of Wales Hospital in Sydney. He earned $187,277 in 2005 and was expected to earn over $210,000 in 2006. He was aged 51 years, married with two sons aged 20 and 23. He and his wife owned a house worth $2,950,000 on which $296,000 was owing. They had other debts of $87,000. Out of a net $1m estate, Dr Colebatch was left $1000. He received an order for $300,000. In Chatard v Bowen a 64-year-old widower made a claim in a $7m estate. He had assets in his own name of $680,000 and he was left $1m under the will and was given a life interest in a house worth $2.65m at Double Bay, Sydney. He received an order giving him the house in addition to the legacy of $1m. Lloyd-Williams v Mayfield39 was an appeal by the estate against a decision of White J40 who had awarded substantial provision for

the advancement in life of an able-bodied adult daughter (who herself had means) out of an estate estimated in excess of $8m. When dismissing the appeal, the court (Bryson JA, Giles JA and Stein AJA agreeing) expressed [page 104] the view that it was open to the judge and ‘altogether appropriate’ to look well beyond needs when interpreting and applying community standards to decide what provision ought to be made and that concept of advancement in life can take consideration well beyond needs. Bryson JA stated:41 In almost all applications under the … Act questions of needs are prominent because of the scale of the resources available. The present case is one of the few which are free of that limitation. The focus of attention on needs is not an underlying legal limit on provision which can be ordered, but a subject which usually arises for consideration when the court addresses the circumstances of each case. Decisions in the past show that judges formerly took a very limited view of the provision appropriate to be made, for example, for able-bodied adult sons and a limited view of the appropriate provision for married daughters. These decisions belong to the past and do not express the values of the present age.

Contingencies allowed for in claims against large estates 3.5 In the case of large estates, the court has the opportunity to make provision for contingencies which it cannot provide for in small estates42 and will do so. Examples include: leaving something to the applicant as a hedge against future misfortune and ill health;43 taking into account the incidence of taxation and inflation on the assets of or provision made for the applicant;44

providing some other fund to assist with the applicant’s superannuation45 or a fund which may be invested to provide some modest accretion to the applicant’s income for his or her life expectancy;46 and providing a fund to meet future unexpected contingencies and for overseas and domestic travel if desired by the applicant.47

Recent change of approach 3.6 Until 1997 orders in large estates were quite small in relation to the size of the estate. In dollar terms, most were within the [page 105] $100,000–$300,000 range. We are aware of only one case in the period where the order exceeded $350,000.48 3.7 Although it appears that there was no judicial pronouncement that orders in large estates should be limited to modest amounts, an analysis of the cases prior to 1997 shows that only modest amounts were ordered. From 1997, large orders were made mostly in New South Wales.49 There is no reason why this more expansive attitude would not be followed in other jurisdictions. Tables 3.4 and 3.5 digest cases involving estates which could be considered as large. [page 106]

[page 107]

[page 108]

[page 109]

[page 110]

[page 111]

Small estates 3.8 There is no hard and fast rule that applications in small estates should be dismissed with costs, but sometimes this is the result.50 Most commonly, the application will be refused and no order will be made as to costs, although the executor and litigation guardian51 would be entitled to their costs out of the estate.52 Occasionally, the application will be refused, but the costs of all parties will be allowed out of the estate.53 It is submitted that the correct approach to be made in applications in small estates is as stated by Goff LJ in Re Coventry54 where he said: Applications in small estates should be discouraged, because the costs tend to become wholly disproportionate to the end in view, although, of course that does not mean that an application cannot be made in a small estate nor that when made it should not be duly considered on its merits.

In Jackson v Riley,55 where the net estate was $25,000, Cohen J remarked: In my opinion, the legal profession in both branches has an obligation to reduce the costs of litigation as much as possible when the amounts in dispute are so small. If the parties cannot reach a compromise then it seems to me, that by consultation, their legal advisers, both solicitors and counsel, should seek to find all means of defining the real issues and confining the evidence in relation to them. Where cross-examination will be unlikely to alter the substance of a witness’s evidence, it should be dispensed with. The heavy expense of bringing those witnesses from distant places should be actively avoided.

In a number of cases the obligation has been expressed as a duty on the legal profession to point out the harsh reality of the application being dismissed in a small estate.56 [page 112] Both applicants and personal representatives have been

cautioned about their actions in small estates. For applicants the concern is that: the court may be less inclined to adopt the usual stance as to costs;57 and they bear the onus of establishing a special claim for provision out of the estate.58 Personal representatives were given the following advice in Szlazko v Travini:59 These days, executors in a small estate would be expected not to look under every bushel for evidence, but to put forward before the Court the essential material and to seek to compromise, if at all possible, in a way that would save both the plaintiff and the other beneficiaries’ costs.

Observations on the duty of an executor in a small estate were made in Randall v Public Trustee60 and Charnock v Handley.61 It was said in these cases that there should be an attempt to settle these claims early to avoid any unnecessary build-up of costs.62 There are some cases where orders have been made in small estates. For example, in Re McRitchie63 the testator, who was married with children, left the whole of his estate to a woman to whom he had promised marriage. The estate was valued at £500 and the order made was that the woman concerned receive £100 and the rest of the estate pass to his family. In Re Hall64 a widowed adult daughter applied in an estate valued at £171. She received an order for £50 (including her costs) out of the estate. In Re Wilson,65 the testator and his wife were both sufferers of cerebral palsy. They had no children. The net estate was $6500. Under the will, the widow received a life interest in the estate. The trial judge gave her a legacy of $1000. The Court of Appeal gave her the whole estate. In Weston v Public Trustee,66 an order was made in an estate of $17,000. In Edwards v Terry67 an order was made in an estate worth $63,500 after costs had been deducted.

[page 113] Another example is Charnock v Handley68 where an order was made in a $62,827 estate. A final example is Ciric v Ciric69 where an order was made in an estate worth less than $200,000 after costs. These cases illustrate the point made by Goff LJ70 that it is possible for orders to be made in small estates, but the prospects for applicants are not good. In Allen v Manchester71 Salmond J said that where the estate is insufficient to meet in full the entirety of the claims upon it, all the court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon the deceased in due proportion to the relative urgency of those claims. Allen v Manchester was not such a case. However, recent examples are Kembrey v Cuskelly72 and Chaloner v Chaloner.73 In these cases, costs out of the estate on an indemnity basis may be awarded to an unsuccessful applicant who had a good case and had acted reasonably in pressing it.74 Difficult decisions such as these are not confined to small estates. In Roberts v Roberts, involving a $1m estate, it was not possible to satisfy the competing claims by the four applicants and two beneficiaries and this made the court’s task extraordinarily difficult.75 Where an estate was described as ‘borderline insolvent’ and where the applicant was an intellectually disabled adult son, the case was considered as profoundly difficult in Duffy v Duffy.76 In the event, the application was dismissed. If the legal costs incurred by the parties exceed the value of the estate, an order can still be made by capping the costs, thus leaving some estate available for the court’s purpose.77 A claim was dismissed in a small estate where all three siblings were roughly equal in terms of financial resources and needs, and

each sibling received a third of the estate on intestacy in Thorne v Public Trustee (TAS).78 In Ellis v Leeder,79 the High Court said that a claim should only be refused where it is clear that it is impossible to make an effective order. This was the case in Manning v Matsen.80 This is another way of [page 114] expressing the court’s approach in small estates. If, for example, the court takes the view that the estate is so small that after costs have been deducted there will be nothing, or virtually nothing, left to dispose of, then the order would almost certainly be refused. If, however, there would be some estate left after costs and the applicant had a strong case (and the beneficiaries under the will or intestacy were in a less calamitous predicament) then an order might be made. In South Australia, the Supreme Court Rules provide for claims in small estates.81 For further details see 11.26. Table 3.6 digests cases where orders have been made in small estates. [page 115]

_______________________ 1.

See 2.3.

2.

Conveyancing, Trustee and Probate (Amendment) Act 1938 (NSW) s 9.

3.

Succession Acts and Another Act Amendment Act 1943 (Qld) s 5.

4.

Statutes Amendment Act 1939 (NZ) s 22; Administration and Probate Act 1953 (ACT) s 3; NT Act s 8; SA Act s 7; Tas Act s 3; Vic Act s 91; WA Act s 6; Inheritance (Provision for Family and Dependants) Act 1975 (UK) s 1.

5.

See NSW Act s 55(1) (NSW 1982 Act s 6(1)) for a definition of ‘administration’. Specific provision for orders to be made in intestate estates is contained in NSW Act s 59(1)(a) and (c); Succession Act Amendment Act 1968 (Qld) s 90: see definitions of ‘administration’ and ‘deceased person’.

6.

Diack v Public Trustee [1941] GLR 215 at 216.

7.

[1970] QWN 22. This concept was also adopted in Re Bridges (1975) 12 SASR 1 at 5; Hinchen v Public Trustee [1978] Tas SR (NC 11) 221; Iwasivka v State Trustees Ltd [2005] VSC 328 at [5]; and Poole v Barrow [2014] VSC 576 at [22].

8.

[1970] VR 449 at 451.

9.

Re Burke (1997) ACL Rep 395 SA 4.

10.

[1970] QWN 22.

11.

See Table 3.1.

12.

For examples of such wills, see Public Trustee v Brown (1915) 34 NZLR 951; Ahearn v Ahearn [1917] St R Qd 167; Rose v Rose [1922] NZLR 809; Re Schwerdt [1939] SASR 333; Re Hatte [1943] St R Qd 1; Re Campbell [1951] GLR 287; McCosker v McCosker (1957) 97 CLR 566; Re Lintern (1982) 98 LSJS 202; Re Guthrie (1983) 32 SASR 86; Re Leonard [1985] 2 NZLR 88. In three cases, the will left the farm to a daughter: see Sinclair v Sinclair [1917] NZLR 144; Re Hughes [1930] St R Qd 329; Re Monshing [2003] VSC 498.

13.

Re Hodgson [1955] VLR 481; Re Hokin [1959] VR 711; Hunter v Hunter (1987) 8 NSWLR 573; Jensen v Leed (1992) ACL Rep 395 Vic 8.

14.

M B Voyce, ‘The Impact of the Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm’ (1993) 7(3) Australian Journal of Family Law 191– 221 at 203, 204.

15.

Sinclair v Sinclair [1917] NZLR 144; Rose v Rose [1922] NZLR 809; Re Hatte [1943] St R Qd 1; Re Campbell [1951] GLR 287; McCosker v McCosker (1957) 97 CLR 566; Re Hokin [1959] VR 711; Re Cooper [1970] 2 NSWR 182; Re Lintern (1982) 98 LSJS 202; Re Guthrie (1983) 32 SASR 86; Re Leonard [1985] 2 NZLR 88.

16.

Re Guthrie (1983) 32 SASR 86.

17.

(SC(WA), Franklin J, No 1404/82, 27 February 1985, unreported).

18.

(SC(WA), Brinsden J, No 1928/82, 5 June 1986, unreported).

19.

M B Voyce, see note 14 above, at 210, 211.

20.

See the Western Australian cases referred to in Table 3.3 where the average order was greater than 20%.

21.

Re Guthrie (1983) 32 SASR 86 at 96; Gillis v Laverty (SC(NSW), Waddell CJ in Eq, No

2081/85, 1 March 1989, unreported); Kelehear v Smith (SC(NSW), Kirby P, Meagher and Handley JJA, No 497/88, 4 October 1990, unreported). 22.

Young v Young (FC(WA), Malcolm CJ, No 64/89, 3 April 1990, unreported); Roberts v Roberts (1992) 9 WAR 549 at 558.

23.

Roberts v Roberts (1992) 9 WAR 549 at 558.

24.

For example, a son or sons who have stayed on the farm and worked it for many years on low income, other siblings who have made their own way in the world and, to some extent, a community attitude that family farms are part of the Australian way of life and should be protected.

25.

Roberts v Roberts (1992) 9 WAR 549 at 559 per Pidgeon J. The other members of the court (Seaman and Murray JJ) were in broad agreement with Pidgeon J’s reasons.

26.

(1983) 32 SASR 86 at 96.

27.

(SC(WA), Franklin J, No 1404/82, 27 February 1985, unreported).

28.

(SC(WA), Malcolm CJ, No 1139/83, 3 April 1989, unreported). See discussion of White v Chambers and Worthington v Dickson in Roberts v Roberts (1992) 9 WAR 549 at 558.

29.

Chapple v Wilcox [2014] NSWCA 392.

30.

It is significant that in three fairly recent appellate decisions in both Australia and New Zealand (Re Leonard [1985] 2 NZLR 88; Hunter v Hunter (1987) 8 NSWLR 573; Re McIntyre [1993] 2 Qd R 383) the amounts ordered and/or affirmed on appeal amounted to 5.4%, 7% and 6% of their respective estates.

31.

Recent examples would include White v Chambers; Worthington v Dickson; Fellows v Paterson [2002] NSWSC 190; Fisher v Grove [2003] WASCA 3; Lathwell v Lathwell [2007] WASC 83; and Hanlon v Evans [2009] NSWSC 137.

32.

Re Bowcock [1968] 2 NSWR 700.

33.

Re Buckland [1966] VR 404; Re Buckland (No 2) [1967] VR 3; Re Anderson (SC(Qld) Civil Div, Kelly J, OS No 414/81, 30 May 1984, unreported); Re Leonard [1985] 2 NZLR 88; Williams v Aucutt [2000] 2 NZLR 479.

34.

Bosch v Perpetual Trustee Co [1938] AC 463.

35.

Lieberman v Morris (1944) 69 CLR 69 at 91–2 per Williams J; Vigolo v Bostin (2005) 221 CLR 191 at 211 per Gummow and Hayne JJ.

36.

Scales’ case (1962) 107 CLR 9 at 19 per Dixon CJ; Re Buckland [1966] VR 404 at 411.

37.

[2007] NSWSC 30.

38.

[2008] NSWSC 533.

39.

(2005) 63 NSWLR 1.

40.

Mayfield v Lloyd-Williams [2004] NSWSC 419.

41.

(2005) 63 NSWLR 1 at [29].

42.

Bosch v Perpetual Trustee Co [1938] AC 463 at 478; Re Buckland (No 2) [1967] VR 3 at 5.

For commentary on small estates, see 3.8. 43.

See, generally, Re Leonard [1985] 2 NZLR 88.

44.

Re Buckland (No 2) [1967] VR 3 at 5. The effect of inflation only was referred to in Goodman v Windeyer (1980) 54 ALJR 470 at 474.

45.

Falkingham v Falkingham [2002] NSWSC 534; McCarthy v McCarthy [2009] NSWSC 774; Axiak v Axiak [2009] NSWSC 1319.

46.

Dobb v Hacket (1993) 10 WAR 532; Berkelmans v Bulach [2009] VSC 472; Jagoe v Maguire [2013] NSWSC 1283.

47.

Cannings v Cannings [2010] NSWSC 87 at [42].

48.

Anasson v Phillips (SC(NSW) Eq Div, Young J, Nos 1125/86, 2900/85, 3413/86, 4 March 1988, unreported).

49.

See Table 3.5.

50.

Re Vrint [1940] Ch 920; [1940] 3 All ER 40; Re Joslin [1941] 1 Ch 200; Manning v Matsen (No 2) [2016] NSWSC 70.

51.

In New South Wales this function is carried out by a tutor. In Western Australia it is carried out by a guardian ad litem.

52.

Re Sharp [1923] St R Qd 102; Re Michel [1939] QWN 49; Ellis v Leeder (1951) 82 CLR 645; Re Coventry [1979] 3 All ER 815; Re Ireland (1994) 15 QL Rep 51.

53.

Re May [1952] GLR 446; Re Klease [1972] QWN 44.

54.

[1979] 3 All ER 815 (CA) at 820. Similar views were expressed by Hoare J in Re Klease [1972] QWN 44. See also Jackson v Riley (SC(NSW) Eq Div, Cohen J, No 3701/87, 24 February 1989, unreported).

55.

(SC (NSW) Eq Div, Cohen J, No 3701/87, 24 February 1989, unreported).

56.

Green v Robinson (1995) 36 NSWLR 96 at 107; King v Foster (CA(NSW), No 40372/95, 7 December 1995, unreported).

57.

That is, that they be paid out of the estate: see 10.2.

58.

Re Ireland (1994) 15 QL Rep 51.

59.

[2004] NSWSC 610.

60.

[2000] NSWSC 500.

61.

[2011] NSWSC 1408.

62.

[2000] NSWSC 500 at [4]; [2011] NSWSC 1408 at [68], [69].

63.

(1917) unreported, but referred to in Queensland Supreme Court Practice Pt 2 (1921) pp 195, 196.

64.

[1941] QWN 3.

65.

[1973] 2 NZLR 359.

66.

(1986) 4 NSWLR 407.

67.

[2002] NSWSC 835.

68.

[2011] NSW 1408.

69.

[2015] NSWSC 313.

70.

Re Coventry [1979] 3 All ER 820.

71.

[1921] GLR 613 at 614.

72.

[2008] NSWSC 262.

73.

[2009] NSWSC 84.

74.

Cope v Public Trustee of Q’ld [2013] QDC 176.

75.

(1992) 9 WAR 549 at 555.

76.

[2014] NSWSC 216.

77.

Moon v Abrahams [2010] NSWSC 69.

78.

[2015] TASSC 56.

79.

(1951) 82 CLR 645. See also Spies v Baker [1970] 3 NSWR 39.

80.

[2015] NSWSC 1801.

81.

Rule 316.

[page 116]

4

Particular Applicants Introduction

4.1 This chapter deals with applications by particular classes of applicant. Different considerations apply to each class and to certain categories of applicant within each class. Thus, an application by a widow warrants a discussion of the various categories of widow; that is, a classic or archetypical widow, a former wife, a second or subsequent wife and a de facto widow/partner. Similarly, an application by a child must be considered in the context of the category into which the child falls, be it an infant child, an adult son or daughter, a child with an intellectual disability and so on. Where the cases appear to establish categories within a class of applicant, we have identified and discussed them. Most discussions end with a table of cases which, it is hoped, will facilitate comparisons with similar types of cases.

Widows Background

4.2 Widows fall into several categories and, for the purposes of this legislation, they may be said to fall broadly into four: 1.

classic or archetypical widows;

2.

former (divorced) wives;

3.

second or subsequent wives; and

4.

de facto widows/partners.

Each of these categories will be discussed separately as different considerations apply to each category. The strength of the applicant’s claim can depend significantly upon the category into which she falls. The above categorisation should be read with caution when considering claims brought in New South Wales. In Neale v Neale1 [page 117] Basten JA deprecated references to a widow as a ‘loyal and dutiful’ wife and ‘a deserving widow’ as being unhelpful and misleading and as adopting the value laden language of a different age and culture. His Honour added that the expression a ‘discerning widow’ is a conclusion which reflects fact-specific findings — it is not ‘a free standing criterion’. Thus, it may be doubted, at least in New South Wales, whether there is an ‘archetypical widow’. One general observation which may be made is that although the legislation allows claims by both widows who were lawfully married and de facto widows/partners, it does not render the existence of marriage irrelevant. As Hodgson JA pointed out in Marshall v Carruthers:2 ‘Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not … make the existence or otherwise of a marriage

irrelevant.’ He went on to say ‘… a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim’.

Classic or archetypical widows 4.3 The classic or archetypical widow may be described as one who was the testator’s only wife, who bore the testator’s children, helped him build up the estate3 and was most probably living with him at the date of his death.4 Any absence at the date of death is more likely to have been caused by health problems (leading to hospitalisation) rather than being caused through separation as a result of marriage breakdown. The strength of her claim on her husband’s estate can be contrasted generally with that of a divorced wife or one who has married the deceased at the end of his days.5 The first observation in respect of a classic or archetypical widow is that the court is usually dealing with one who was prima facie dependent upon the deceased and prima facie has a claim to be properly [page 118] maintained and supported.6 In effect, as a general rule, the widow and infant children have the strongest claim on the deceased’s bounty. Their claim is usually described as being paramount.7 However, it would be wrong to conclude that a widow’s claim is always paramount. In Bladwell v Davis,8 Bryson JA (with whom Ipp JA and Stein AJA agreed) stated: There have been many statements in judicial decisions … generally to the effect that primacy of some kind is accorded to claims for widows … These statements are not altogether uniform in expression, and should be understood as made in

each case in relation to the facts under consideration; and these facts vary widely and in truth are unique to each case. ‘Widow takes all’ is not a rule which has been or could be established by judicial decisions: the Court cannot resign the functions which it has under s.7 of the Family Provision Act 1982 in favour of rules of thumb.

Bryson JA added that ‘it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse (1994) 181 CLR 201’.9 However, the court will not attempt precisely to replicate the way of life that the deceased and the applicant widow planned to have had he survived.10 Where a widow claims and there are no competing claims, it has been said that proper maintenance is ‘such maintenance as will enable her, taken in conjunction with her own means, to live with comfort and without pecuniary anxiety in such state of life as she was accustomed to in her husband’s lifetime or would have been so accustomed to if her husband had then done his duty to her’.11 Although such cases are [page 119] rare, this statement is a convenient starting point for a discussion of claims by widows. Today, a life interest in a home or home unit is unlikely to amount to adequate provision for a widow of advanced years.12 A fortiori, a right of residence in a home or home unit, would be even less likely to amount to adequate provision for a widow of advanced years.13 The widow’s ownership of a home is more important today than in former times as people are living longer and a widow will probably need to move from her own home to a retirement village or nursing home at some stage. The security of a

home enables a widow to afford these moves.14 In most cases, the widow may well be awarded the whole estate or a very substantial part of it if there are no competing claims.15 Orders for the payment of a capital sum are far more likely to be made now than previously16 although, where the widow is vulnerable or likely to dissipate the estate, in our view the court may grant her a more limited interest.17 Even when the practice was to limit provision for a widow to her widowhood and to order an annuity rather than a lump sum,18 an exception was allowed where the widow had no separate estate, the estate itself was small and she was maintaining young children.19 Now that the courts are more amenable to making lump sum orders in favour of widows, what was once exceptional has become commonplace. Thus, in the special circumstances described above and in the absence of other countervailing factors, it may now be regarded as proper for the widow to be given the whole, or substantially the whole, of the estate. The capacity of the applicant widow to maintain herself, independently and autonomously, will also have a bearing upon what is proper provision.20 [page 120] Reference has already been made to the effect of changing social attitudes on the court’s view of what a wise and just testator should provide for his widow.21 Powell J observed in Elliott v Elliott:22 It has been said that where a marriage has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the deceased husband’s duty is to ensure that his widow be

secure in her home for the rest of her life, with capacity to change that home, that she has an income sufficient to enable her to live in a reasonable degree of comfort and free from financial worry and to have a fund to provide herself with such modest luxuries as she might choose and which would also provide a hedge against any unforeseen contingency or disaster that life might bring.

This statement was approved by the New South Wales Court of Appeal on 24 April 1986 and was the subject of obiter in the same court in Marshall v Carruthers.23 That obiter was to the effect that it should be regarded as a broad general rule and does not necessarily apply in all cases.24 A good example of a case where the broad general rule did not apply is Manly v Public Trustee of Queensland.25 In that case, the parties had been married for only three-and-a-half years, the marriage was pursuant to an agreement to provide nursing care for the deceased who was suffering from Parkinson’s disease at the date of the wedding and there were strong competing claims by three sons of the deceased’s prior marriage. There is no reason why the above statements of a husband’s duty, as qualified in Marshall v Carruthers, would not apply in other Australian jurisdictions. Finally, it should be noted that the Northern Territory extends entitlement to apply for provision to traditional Aboriginal spouses.26 General observations on claims by a spouse may be found in Epov v Epov [2014] NSWSC 1086 at [139]–[152]. Table 4.1 digests claims by classic or archetypical widows. [page 121]

[page 122]

[page 123]

[page 124]

[page 125]

[page 126]

[page 127]

Effect of remarriage on a spouse’s claim Historical background

4.4 The question whether remarriage operates as a bar to a claim by a spouse was first considered in the Tasmanian case of D’Antoine v Field.27 In that case, the trial judge increased the widow’s annuity under the will from £150 per annum to £250 per annum and removed the limitation in the will that it was payable only during widowhood. The widow had not remarried. The Full Court held that the court had no power to make provision beyond widowhood because the rights given to the widow by the Tasmanian Act were given to her expressly as ‘widow’. If she remarried she would cease to be a widow and would lose her right to apply. The Full Court drew attention to the significance of the wording of the Tasmanian Act and in particular the use of the word ‘widow’.28 Crisp J said:29 The Act is difficult to construe, but one cannot fail to be impressed by the repetition throughout of the word ‘widow’; it is the widow whose claims to support are to be recognised. But if the lady remarries she is no longer the testator’s widow; ….

In New Zealand, the courts initially came to the same conclusion as did the Tasmanian Full Court in D’Antoine v Field, notwithstanding the difference in legislation. Applications there were open to a ‘wife’, not a ‘widow’,30 but in Newman v Newman31 it was held that ‘wife’ connotes ‘widow’ and ‘husband’ connotes ‘widower’ because the benefits of the legislation can only be claimed by a spouse on the death of the other spouse. Therefore, it followed that, if a widow remarried, she was no longer a widow and had no right to apply. This view was accepted in other cases at first instance32 and finally by the Court of Appeal in Re CK.33 4.5 The New Zealand Court of Appeal did not consider the statements it had made in Re CK when it decided Bailey v Public Trustee34 10 years later35 and, on one view, the decision in the latter

[page 128] case may be regarded as one made per incuriam and therefore one not to be followed. However, the statement in Re CK is strictly obiter and thus Bailey’s case was the first occasion on which the Court of Appeal properly considered this question. Bailey v Public Trustee reversed the earlier decisions and established that the status of a wife as a possible applicant was fixed once and for all at the date of the deceased’s death and subsequent remarriage affected quantum only. This view was an adoption of the principle established in Welsh v Mulcock:36 The moral duty of the testator to make provision for the proper maintenance of his family can only be ascertained by reference to the facts as existing at the date of his death including, of course, among such facts the reasonable probabilities as to future changes of circumstances.37

Two years earlier, the Victorian Supreme Court held that a widow could claim after remarriage38 and, in Re Claverie,39 the Chief Justice in Equity in New South Wales came to the same conclusion on the basis that the word ‘widow’ referred to the person who was the widow of the deceased at the date of death. Some years earlier, Sholl J had considered this question at length in Re De Feu40 and had come to the conclusion that the reasoning in Bailey’s case was unsatisfactory and, although not deciding the point, had preferred the view that remarriage ended a spouse’s right to claim.41 Section 57(1)(a) of the NSW Act defines as an eligible person ‘a person who was the wife or husband of the deceased person at the time of the deceased person’s death’. Accordingly, the fact that the surviving spouse has, since the deceased person’s death, remarried would not extinguish the survivor’s status as an eligible person entitled to bring or maintain an application. Section 59(2) requires the court to have ‘regard to the facts known to the Court at the

time the order is made’. The surviving spouse’s remarriage would clearly be a material fact.42 In Tasmania, the court may make an order in favour of a widow, notwithstanding that she may, at any time after the making of the order, remarry, if it is desirable to do so having regard to all the circumstances of the case.43 In Western Australia, Re Claverie was followed in Shannon v Baker.44 [page 129]

Current position 4.6 For New Zealand, Bailey’s case is authoritative. Remarriage there is not a jurisdictional bar to a spouse’s right to claim under the Act. In Australia, the position is unclear. As can be seen from the above discussion, there are authorities both for and against the proposition that a spouse’s right to claim ceases on remarriage. We are of the view that Bailey’s case is more likely to be followed than not in Australia because the opposing view places a penalty on remarriage or a restriction on marriage which, generally speaking, is not welcomed by the courts. Further, no injustice would occur by allowing the claim to proceed because the fact of the remarriage would be taken into account45 and, if the widow had improved her position by that marriage, the court might well dismiss her claim. Technically, there is always a time between the death and the remarriage when the widow’s maintenance and support is relevant, and this is a good reason why there should not be an automatic exclusion. In other words, our view is that

remarriage does not affect eligibility to apply, but it may affect the quantum of the order. A contrary argument could be based on the use of the words ‘widow’ and ‘wife’ in the legislation, as advanced in D’Antoine v Field.46 Although this case considered only the term ‘widow’, the subsequent New Zealand cases of Winder v Public Trustee47 and Re Collett48 express the view that ‘wife’ is synonymous with ‘widow’ in the context of the legislation. In the unlikely event that a court would draw a distinction between the terms and be inclined to follow the D’Antoine v Field approach only where the term ‘widow’ was used, the wording of the various legislative provisions would be relevant.49 New Zealand’s Testator’s Family Maintenance Act 1900 and its subsequent re-enactments use the word ‘wife’ when describing potential applicants, whereas the first Australian Act, the Widows and Young Children Maintenance Act 1906 (Vic), uses the word ‘widow’ rather than ‘wife’. Tasmania, Western Australia, the Australian Capital Territory and the Northern Territory followed the Victorian wording, and New South Wales and Queensland followed the New Zealand wording. South Australia used the term ‘spouse’. Western Australia changed from ‘widow’ to ‘wife’ in 1939. The Australian [page 130] Capital Territory changed from ‘widow’ to ‘wife’ in 1996. Thus, today, provision is made for a ‘widow’ in Tasmania and the Northern Territory, and for a ‘wife’ in the Australian Capital Territory, New South Wales, Queensland, Western Australia and New Zealand, and for a ‘spouse’ in South Australia which is

defined as a person who is legally married to the deceased as at the date of his or her death.

Effect of separation on a claim 4.7 While separation per se does not disentitle a widow to relief,50 further investigation may reveal either conduct disentitling51 or a much lower moral obligation than would otherwise be the case.52 Where the facts show a mutual intention to renounce the obligations of marriage, the effect of separation, particularly a long one, may be to reduce that moral obligation to nil.53 However, a moral obligation may subsist even if the parties have never cohabited, or have not cohabited since the wedding, provided there are other factors (for example, the birth of a child to the spouses either before or after the marriage and no competing claims) which would justify an order.54 The court must have regard to the marriage bond and in particular to the reality of that bond.55 Table 4.2 digests cases involving separation of the parties and indicates the somewhat lower level of provision which is likely to be made where the parties have separated. As indicated by the table, major factors to be considered in these cases are the duration of the marriage itself, the period of separation, whether there were any children of the marriage and the ability of the widow to support herself. Where the period of cohabitation is short and the separation is long, the award is likely to be a very low one56 if any is made at all.57 [page 131]

[page 132]

[page 133]

[page 134]

[page 135]

[page 136]

[page 137]

Former (divorced) wives 4.8

The parliaments of Australia have for many years

recognised that a deceased either may have, or in fact has, a moral obligation to support his former spouse58 and the desirability of recognising this obligation has received judicial support.59 As a general rule, a former wife is not in a strong position as an applicant. The view was once expressed that the position of a former wife is probably nearer to that of an adult daughter than to that of a widow.60 Taken as an indication of the position in the typical case, it is probably correct. As a guide to be used in all cases, it has not found favour.61 The better view seems to be that each case must be determined on its own facts and the court should examine the actual relationship between the two people concerned as far as possible without preconceptions based only on the fact of divorce.62 Although all states and territories allow such applications, former spouses are treated differently from normal spouses in the legislation because, apart from in the Australian Capital Territory and South Australia, there are conditions restricting their eligibility to make an application.63 In the Australian Capital Territory a former spouse applies as a domestic partner of the deceased, being a person who was the deceased’s spouse at any time.64 In the Northern Territory, the spouse must be maintained by the deceased at the date of death,65 while in New South Wales the court must be satisfied that there are factors which warrant the making of the application.66 In Queensland the spouse must not have remarried [page 138] and must be receiving or be entitled to receive maintenance,

while in Victoria the court must find that the applicant would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth and has either not taken those proceedings or commenced but not finalised those proceedings and is now prevented from taking or finalising them because of the deceased’s death.67 In Tasmania and Western Australia, the spouse may have remarried but must be receiving or be entitled to receive maintenance. There are no restrictions on applicants in South Australia.68 A wife (or husband) does not lose that status after divorce proceedings until the decree absolute and thus an application may be commenced by a widow (or widower) at any time before the divorce order.69 Once the necessary status is established, the divorce proceedings become a factor in the assessment and quantification of the moral obligation owed by a deceased to his or her spouse, albeit in most cases it is the most important factor.70

‘Receiving or entitled to receive’ maintenance 4.9 As indicated above, in Queensland, Tasmania and Western Australia, one of the requirements is that the applicant is ‘receiving or entitled to receive’ maintenance from the deceased at the date of death. Whether the applicant is actually receiving maintenance is usually easy to establish, but there is one case where even something as apparently simple as that has proved contentious. In Re Stewart71 the deceased had agreed, on separation, to pay his wife $50 per week for the support of their son, but nothing for herself. In accordance with that agreement, the deceased in fact paid the sum of $50 per week into a bank account in the name of his former wife. There was uncontested evidence that the deceased later made statements clearly capable of supporting the inference that the $50 per week could be spent

by his former wife as she saw fit. Thus, even though the money was originally to be paid to her as maintenance for the child of the marriage, the deceased allowed her to use the money for her own purposes. It was held that this constituted her as a person who was receiving maintenance at the date of death. [page 139] Whether the spouse is ‘entitled’ to receive maintenance in this context means entitled by virtue of a court order or an enforceable agreement.72 In effect, there must be ‘an actually crystallized right to the payment of maintenance.’73 In Western Australia, the position under the 1939 Act was that the applicant had to be a widow who was receiving, or was entitled to receive, permanent maintenance from her husband by order of the court.74 Under the present WA Act, the applicant may be a widow or widower and must still show that he or she is receiving, or is entitled to receive, maintenance from the deceased, but it may be by court order, agreement or otherwise. It is difficult to know what is meant by the words ‘or otherwise’ because it is hard to conceive of such a right.75 The restriction would seem now to have little effect as the court could entertain, for example, an application based only on a verbal agreement which would be difficult to disprove.

Relevant considerations generally 4.10 In quantifying a claim by a former wife, a number of considerations are clearly relevant. The following have been extrapolated from several cases,76 but principally from Re Adams77 and Re Cutts:78

1.

the applicant is the mother of the deceased’s children;79

2.

she has had the upbringing of the children;80

3.

the length of time from the separation of the spouses to the deceased’s death;81

4.

the course which the lives of the parties have followed since the separation;82

5.

the length of the parties’ married life together;83 [page 140]

6.

the age of the former wife at the time of the separation, at the time of divorce and at the date of death;84

7.

the widow’s prospects of supporting herself after the death of the deceased;85

8.

the extent to which the deceased has provided in any deed of settlement for his wife’s future after his death;86 and

9.

the former wife’s prospects of remarriage after the divorce.87

Clearly, other considerations would be the extent to which the former wife assisted the deceased in amassing his estate and the payment by the deceased of any court order in favour of the former wife. Having regard to the above and any other circumstances that may be relevant in a particular case, the court may still take the view that the deceased had no moral obligation to his former wife, as occurred in Re Blood88 or in Re Fullard.89 In these circumstances, the applicant may also be at risk as to costs.90

Second or subsequent wives

4.11 In Luciano v Rosenblum91 Powell J said, in an application by a second wife, that as a broad general rule and in the absence of special circumstances and to the extent of assets available, a testator should ensure that his widow is secure in her home, that she has an income sufficient to permit her to live in the style to which she is accustomed and should provide her with a fund to meet any unforeseen contingencies.92 If references in Luciano to a ‘broad general rule’ qualified only by ‘the absence of special circumstances’ suggests an independent standard, this is not consistent with the exercise required by s 60 of the NSW Act. [page 141] To treat Luciano as establishing a legal principle (or a standard) may deflect the court from the full exercise of its functions.93 As far as the legislation is concerned, there is no difference between a first and second or subsequent wife. The claim of a second wife is at law just as strong as that of a first wife. However, in determining what constitutes adequate provision for a second wife, the court must determine the existence and the extent of the husband’s moral obligation to the second wife in the light of the whole of the surrounding circumstances of the particular case.94 It would be true to say that, as a general rule, the moral claim of a second wife is not as great as:95 that of the widow who has lived with the testator for the whole of his married life, assisted to build up his estate, managed his household during the whole of that time, cared for and brought up his children, and generally acted as his partner in the business of life.

Where the duration of the second marriage is short and there are children of the deceased by a previous marriage, those children

may be seen to have a greater claim to the estate than the second wife.96 However, where the duration of the second marriage is long, different considerations seem to apply.97 In these cases the court tends, to some extent, to regard the second or subsequent wife as equivalent to a first wife as far as her accommodation is concerned and does everything possible to secure her accommodation for the same reasons as have been given in claims by widows.98 In some cases provision for the second spouse is to the detriment of the children of the first marriage.99 This proposition is supported by the orders made in such cases as illustrated by the following Table 4.3. [page 142]

[page 143]

[page 144]

[page 145]

[page 146] It will be seen that a widow who is a second wife in a marriage of short duration is unlikely to receive much more than 50 per cent of the estate. The table also suggests that the widow’s share tends to reduce in inverse proportion to the number of children of

the first marriage. Where the marriage is of long duration, a much larger share is more likely. The court normally has several options in this type of application such as a legacy, sale and division of proceeds, a Crisp order, any combination of these and an absolute interest in the matrimonial home.100 It was said that the duty of maintenance and support did not extend to providing a widow with a capital sum which she might leave at her death nor, at least as a general rule, providing for her maintenance and support after her remarriage should she remarry.101 This is no longer a rule of general application but its underlying concept may have some application in the case of a second wife. In determining the extent of a deceased’s moral obligation to a second wife, the main factors appear to be: 1.

the duration of the marriage;

2.

the testator’s wishes;102

3.

the general history of the marriage;103 and

4.

competing claims.104

Other factors which appear to have influenced the courts have included the nursing of the deceased in his final years, a not uncommon occurrence,105 and the applicant herself being in poor health.106 If the size of the estate is substantial, the duration of the marriage relatively long, and the widow has assisted in building up the estate, her moral claim tends to increase.107 It has been said that in such cases the widow should be put in the position where she is mistress of her own life and is not beholden to the executors or remaindermen.108 In other words, the roof over her head should be in her own name and she should have some capital as well. Where a second wife does not inherit the former matrimonial

home, there is no rule that she should be given the home. Every case will [page 147] depend on its own circumstances. However, it is reasonable to suggest that in most cases, where the second marriage has been long and harmonious, a right of residence or a life interest will not amount to adequate provision. A few examples will support this view: A widow, who was the deceased’s third wife of some 23 years standing, and who was left a right of residence during widowhood, was granted the fee simple of the former matrimonial home in a small estate in Lord v Lord.109 In Horvat v Hocking110 the widow of 14 years standing, who was the deceased’s third wife and who was left a right of residence in the matrimonial home, was also granted the fee simple of the home. In Guisande v Rosario111 a concerned widow, who was the deceased’s second wife of 31 years’ standing, was given a right of residence in the matrimonial home. She was given $360,000 (enough to buy her own house) in a $471,000 estate. A widow, who was the deceased’s second wife of some 37 years’ standing, and who was left a life interest in the matrimonial home, the home being the sole asset in the estate, received an order giving her the whole estate in Adkins v Adkins.112 It is possible for a life interest to be considered adequate provision but the circumstances would have to be unusual. One such case is Milillo v Konnecke.113 There, a widow, who was a third wife, was left a life interest in a $400,000 home plus a legacy of $10,000. She had lived with the deceased for 10 years, then married

him and lived with him as his wife for a further five years. At the time of her application, she was suffering from bone cancer and had a short time (possibly no more than two years) to live. On obtaining an undertaking by the executors that they would not sell the home while the applicant was alive, the trial judge dismissed the application. This decision was upheld on appeal.114 In these cases, the orders made by the court do not appear to fall into any particular pattern. The order made will depend on the circumstances of the particular case. There seems to be no predilection towards annuities, small cash payments or life interests. Table 4.4 digests cases involving claims made by a second or subsequent spouse. [page 148]

[page 149]

[page 150]

[page 151]

[page 152]

[page 153]

[page 154]

[page 155]

[page 156]

[page 157]

[page 158]

[page 159]

[page 160]

De facto widows/partners 4.12

An application by a de facto widow/partner may be

brought in all states and territories.115 Although there are differences in the eligibility provisions among the jurisdictions, a common feature is the strictness of the rules which govern eligibility. Four jurisdictions have relationship registers.116 These would obviously be useful in determining whether a de facto relationship exists or not, assuming the applicant and the deceased have entered their names on the register. The onus of proof that a de facto relationship existed lies on the applicant.117 In the absence of corroboration, the court must exercise considerable caution before accepting the applicant’s evidence on this issue.118

Australian Capital Territory 4.13 In the Australian Capital Territory, a de facto spouse, described in the legislation as a ‘domestic partner’, must have lived with the deceased in a domestic relationship for two years continuously at any time during the life of the deceased or for a lesser period where the person was the parent of a child of the deceased.119

New South Wales 4.14 In New South Wales, the de facto partner must have been living with the deceased person at the time of the deceased’s death. The definition of ‘de facto partner’ and ‘de facto relationship’ in s 21C of the Interpretation Act 1987 (NSW) applies to the NSW Act. Subsection (1) provides that a person is the ‘de facto partner’ of another person (whether of the same or a different sex) if the person is in a registered relationship or interstate registered relationship with the other person or the person is

[page 161] in a de facto relationship with the other person. Subsection (2) provides that a person is in a ‘de facto relationship’ with another person if they have a relationship as a couple living together and they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or is in a registered relationship or interstate registered relationship with someone else. In determining whether two people are in a de facto relationship, all the circumstances of the relationship are taken into account, including: 1.

the duration of the relationship;

2.

the nature and extent of the common residence;

3.

whether or not a sexual relationship existed;

4.

the degree of financial interdependence, and arrangements for support, between or by the parties;

5.

the ownership, use and acquisition of property;

6.

the degree of mutual commitment to a shared life;

7.

the care and support of children;

8.

the performance of household duties; and

9.

the reputation and public aspects of the relationship.120

any

No finding in respect of any of these matters or in respect of any consideration of them, is to be regarded as necessary for the existence of a de facto relationship.121 Further, a court determining whether such a relationship exists is entitled to have regard to such matters and to attach such weight to any matter as may be appropriate in the circumstances of the case.122

A person who was in a registered relationship or interstate registered relationship pursuant to the Relationship Act 2010 (NSW) with the deceased person at the time of death will be able to rely on that fact alone when establishing eligibility to make a claim. Where claimants assert they were in a de facto relationship with the deceased person at the time of death, they must meet the criteria in s 21C to prove eligibility. Critical to this is the fact that they were ‘a couple living together’. The ‘circumstances’ listed in s 21C(3) (and referred to above) serve as ‘reminders of matters that possibly might be relevant in deciding whether two people are in a de facto relationship, but they do not state its essence. The essence is to be found in the definition in s 21C(2). If two people do not ‘live together as a couple’ they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various ‘circumstances’.123 [page 162] A former de facto spouse may apply as a person who was, at any particular time, wholly or partly dependent on the deceased person and who was, at that particular time or at any other time, a member of the household of which the deceased person was a member.124 For this purpose, it is possible for someone to be a member of two households.125 Obviously, the mere establishment of the necessary status does not ensure success, particularly where no real need can be demonstrated. A good example is Sung v Malaxos,126 where an applicant had assets of $1m–$1.2m, including about $400,000 from the estate, and a good income and the estate was worth $1m– $1.2m. Applying the above factors to the facts of the case, the trial

judge and the Court of Appeal were unable to find that a de facto relationship existed in Amprimo v Wynn.127

Northern Territory128 4.15 In the Northern Territory there is no specified minimum period for a de facto relationship to give rise to an entitlement to claim under the NT Act. A de facto relationship is defined as two persons who are not married but have a marriage-like relationship.129 In deciding whether two persons are in a de facto relationship, all the circumstances must be taken into account including any relevant matters such as: 1.

the duration of the relationship;

2.

the nature and extent of the common residence;

3.

whether or not a sexual relationship existed;

4.

the degree of mutual commitment to a shared life;

5.

the ownership, use and acquisition of property;

6.

the care and support of children;

7.

the performance of household duties; and

8.

the reputation and public aspects of the relationship.130

A former de facto partner may apply if the person was maintained by the deceased immediately before his or her death.131 [page 163]

The former de facto partner is not regarded as being so maintained unless the deceased was, at that time, whether under an agreement in writing or otherwise, maintaining the former de facto partner or making a contribution to his or her maintenance that, in all the circumstances, can be regarded as being other than a nominal contribution.132

Queensland Where the deceased died before 1 April 2003 4.16 In Queensland, the de facto spouse must fulfil two conditions in order to be entitled to make a claim. First, the de facto spouse must have been wholly or substantially maintained or supported by the deceased at the date of death (otherwise than for full valuable consideration).133 In Re Cobb134 it was held that, in determining whether a person has been wholly or substantially maintained or supported, one should take an overall view of the situation. In that case, the section was held to be satisfied where both parties were working, earned substantially the same amounts of income and had come to an agreement as to the dispositions of their respective incomes and contributed to a common fund which was intended to be used to buy a jointly owned home. The phrase ‘full valuable consideration’ requires a subjective judgment by the court. Whether consideration is full is a question of fact.135 In Jelley v Iliffe,136 it was said: ‘Each case will have to be looked at carefully on its own facts to see whether common sense leads to the conclusion that the applicant can fairly be regarded as a dependant.’ Clearly, the question cannot be solved by any technical process of putting a value on the property which passed on one side and weighing against it the money value of the

obligations assumed on the other. What is relevant is the nature of the arrangement between the parties. As was said in AttorneyGeneral v Boden,137 in considering a transaction in the more formal sense: ‘Another method is by looking at the nature of the transaction and considering whether what is given is a fair equivalent for what is received.’ It seems, therefore, that the concept of ‘fair equivalent’, deriving as it does from taxation law, is now acceptable in the area of family provision. Second, the de facto spouse must have lived in a connubial relationship with the deceased for a continuous period of five years [page 164] at least, terminating on the death of the deceased or, within the period of six years terminating on the death of the deceased, have lived in a connubial relationship with the deceased for periods aggregating five years at least, including a period terminating on the death of the deceased. The indicia of a connubial or matrimonial relationship can be found in Dobson v Dobson,138 Tulk v Tulk139 and In the Marriage of Todd (No 2),140 and include marital intercourse, dwelling under the same roof, society and protection, support, recognition in public and in private, and correspondence during separation.

Where the deceased died on or after 1 April 2003 4.17 The term ‘spouse’ includes a person’s de facto partner as defined in s 32DA of the Acts Interpretation Act 1954 (Qld).141 A de facto partner is defined as one of two persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family, and the applicant and

the deceased must have lived together as a couple on a genuine domestic basis for a continuous period of at least two years ending on the deceased’s death.142 In deciding whether this is the case any of their circumstances may be taken into account. Those circumstances may include: 1.

the nature and extent of their common residence;

2.

the length of their relationship;

3.

whether or not a sexual relationship existed;

4.

the degree of financial dependence or interdependence, or any arrangement for financial support;

5.

their ownership, use and acquisition of property;

6.

the degree of mutual commitment to a shared life, including the care and support of each other;

7.

the care and support of children;

8.

the performance of household tasks; and

9.

the reputation and public aspects of their relationship.143

No finding in relation to any particular circumstance is necessary to decide whether or not two persons are living together as a couple on a genuine domestic basis.144 However, the Court of Appeal has held [page 165] that the definition of a ‘de facto relationship’ in the Qld Act suggests that, usually, the parties at some stage should have been ‘living together as a couple on a genuine domestic basis’ and that it would be a wholly exceptional case in which one could conclude that a man and a woman, who have never lived

together as husband and wife in a common residence, and who have never made provision for their mutual support, have been ‘living together as a couple on a genuine domestic basis’.145

South Australia 4.18 In South Australia, the nature of the connubial relationship required is effectively the same as in Queensland where the deceased died before 1 April 2003146 but: 1.

there is no requirement that any maintenance of the de facto spouse be established;147 and

2.

the relevant date on which to establish the relationship may be either the date of death or some earlier date;148 and

3.

the claim may also be based on the birth of a child from the relationship (whether or not the child has survived).149

However, a de facto spouse, referred to in the Family Relationships Act 1975 (SA) as a ‘domestic partner’, must obtain a declaration that he or she has the status of a domestic partner of the deceased pursuant to s 11B of the SA Act in order to be recognised as such for the purpose of making a claim.150 Further, the personal representative may by notice in writing require a person who claims such a relationship to take proceedings for a declaration that she was a domestic partner of the deceased. If these proceedings are not commenced within three months of the notice, the claim may be defeated.151

Tasmania 4.19

In Tasmania, a de facto spouse is defined as including a

person with whom a person is, or was at the time of his or her death, in a [page 166] significant relationship, within the meaning of the Relationships Act 2003 (Tas). Section 4 of this Act provides that a significant relationship is a relationship between two adult persons who have a relationship as a couple and who are not married to one another or related by family. This relationship may be registered. If it is not registered, all the circumstances of the relationship are to be taken into account when determining whether a significant relationship exists, including: 1.

the duration of the relationship;

2.

the nature and extent of common residence;

3.

whether or not a sexual relationship existed;

4.

the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;

5.

the ownership, use and acquisition of property;

6.

the degree of mutual commitment to a shared life;

7.

the care and support of children;

8.

the performance of household duties; and

9.

the reputation and public aspects of the relationship.152

No finding in respect of any of the above matters or any combination of them is regarded as necessary for the existence of a significant relationship. The court may have regard to such matters and give to them such weight as it considers appropriate in the circumstances of the case.153

Victoria 4.20 The Victorian Act was amended in 2014154 and a de facto widow/partner now has a statutory right to apply if she is a domestic partner of the deceased.155 A de facto widow/partner applies as a domestic partner of the deceased. The term ‘domestic partner’ is defined in s 3(1) of the Victorian Act as a person who is either a registered or an unregistered domestic partner of the deceased. A registered domestic partner is one who was in a registered domestic relationship within the meaning of the Relationships Act 2008.156 An unregistered domestic partner is one who is not a registered domestic partner and although not married to the deceased, was living with that person at the time of the deceased’s death as a couple on a genuine domestic basis (irrespective of gender) [page 167] and either has lived with that person in that manner continuously for a period of at least two years immediately before that person’s death or is the parent of a child of that person and that child was under 18 years of age at the time of the deceased’s death.157 A de facto relationship may exist even though the applicant and the deceased do not reside together and the applicant is not financially dependent on the deceased and has made no financial or other significant contribution to the deceased’s circumstances.158

Western Australia

4.21 In Western Australia, the de facto spouse must have been living with the deceased immediately before the deceased’s death.159

Decided cases 4.22 In Australia, there are several reported decisions of successful applications by a de facto spouse.160 In Re Harding,161 details of the relationship were not given in the report, but the applicant was held to be a de facto spouse for the purpose of the legislation and an order was made in her favour. Details of quantum or size of the estate also were not given. In Weston v Public Trustee,162 a woman who had been living with the deceased for several days every week for over 30 years, but had kept a separate residence, was held to be eligible to apply and the order made was that she receive the whole of the deceased’s small ($17,000) estate. In Re Cobb,163 details of the relationship were not given. However, the case is instructive on the issue of what may constitute ‘wholly or substantially maintained or supported’.164 In the case of a dependant, being a person who has lived in a connubial relationship with the deceased person, there appears to be ample authority to support the proposition that to ‘live with the deceased person’ in the context of this section will cover the situation [page 168] where a deceased was hospitalised for an extensive period prior to death or was perhaps resident in a convalescent home or in some situation of enforced separation.165

As was said in Main v Main:166 The existence of a connubial relationship is not inconsistent with absences one from another, even for long periods of time. However, there must be an intention to resume that relationship as soon as the event which produced the absence has passed.

Generally speaking, where the relationship is of substantial duration, a de facto widow/partner is likely to be treated as if she had been married to the deceased.167 This means she should have, if possible, a secure home and an income sufficient to permit her to live in the lifestyle to which she had become accustomed and a fund to provide a hedge against any unforeseen contingency.168 This standard of provision comes from what was said in Luciano v Rosenblum.169 It has been said to apply as much to a de facto widow/partner as to a married one.170 What standard of house the widow should have seems to depend to some extent on whether or not she has dependants. For example, in Inostroza v Dura,171 involving a 10-year relationship and a $380,000 estate, Macready M said: Although it is appreciated Mrs Inostroza might like a large house, she does not have dependants and provision of such accommodation would be inappropriate.

Recent unreported cases suggest that, generally speaking, adequate provision for a de facto widow/partner of a longstanding relationship is a sum sufficient to buy a two-bedroom townhouse or home unit in the [page 169] area in which she has been living and a contingency sum to maintain the townhouse or unit and to supplement her living expenses.172 However, a provision of the type discussed above will not apply in the case of large estates or small ones,173 or where competing claims are particularly strong.174 Although the number

of bedrooms was not stated in Anslow v Journeaux, provision was made in that case for a widow who had cohabited with the deceased for 35 years by way of $500,000 to buy a home unit and a contingency fund of $300,000.175 The amount of any contingency fund depends partly on the size of the estate and partly on the financial circumstances of the widow. Examples of orders made for contingency funds in claims by a de facto widow/partner are set out in Table 4.5.

Table 4.5

1

Examples of contingency funds for de facto widows/partners

Case Aranas v Berry [2002] NSWSC 355

Contingency fund $50,000

2

McIntosh v Blatch [2002] $125,000 NSWSC 403

3

Szlazko v Travini [2004] NSWSC 610

4

Holdway v Arcuri $120,000 Lawyers [No 2] [2007] QSC 378

5

Anslow v Journeaux [2009] VSC 250

$80,000 (incl $30,000 for m/v)

$300,000

General observations on claims by a de facto spouse as defined in s 21C(2) of the NSW Interpretation Act 1987 may be found in Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 at [195]–[207]. Table 4.6 digests cases involving claims by de facto widows/partners.

[page 170]

[page 171]

[page 172]

[page 173]

[page 174]

[page 175]

[page 176]

[page 177]

[page 178]

[page 179]

[page 180]

Widowers 4.23

As indicated in the course of the commentary in 2.1 and

following, the law applies equally to an application by a widower against the estate of his former wife as to one by a widow against the estate of her husband. Although only Victoria initially did not allow such applications, for the first 60 years of family provision legislation, the courts tended to be niggardly in making orders for widowers. The approach which seems to have been adopted has been expressed in the following terms:176 Prima facie a husband should be able to maintain himself, and ought not to ask the court to give him, out of his wife’s estate, more than she has thought to provide for him.

It was said that an order would be made only in exceptional circumstances. By 1966, this approach began to be questioned in the United Kingdom177 and a few years later in Australia.178 The modern view is that the court looks at the need and moral claim of the applicant widower, competing claims and other relevant circumstances and pays no regard to the gender of the applicant or the fact that he is a widower. Supplementing an annuity left by will by means of a discretionary trust is unlikely to be considered as adequate provision.179 Factors such as ill health and/or inability to support himself180 or the fact that the applicant helped to build up the deceased’s estate181 are, of course, relevant. Where a husband and wife have lived in the matrimonial home for many years, which home has been paid for by their joint savings, and the home is needed for use by the widower, the duty of the wife is said to be such that she should leave the matrimonial home to her husband absolutely.182 In a case where the matrimonial home was not paid for from joint earnings,183 a right of residence with a right to an alternative residence (together with a legacy of $1m) was held to be inadequate provision in Chatard v Bowen.184 The parties had been happily married

[page 181] for 36 years and the applicant cared for his wife, who suffered from multiple sclerosis, for many years. He was said to be entitled to ‘security and flexibility concerning his residentiary accommodation’. The order was that he be given the matrimonial home absolutely. The case seems to mirror those involving claims by widows who were in long and happy marriages where a right of residence was held to be inadequate.185 As far as quantum is concerned, cases decided prior to 1960 should be referred to with considerable care, as it is submitted that they reflect an outdated approach. Where there are infant children of the marriage being cared for by the widower, a life interest in the whole estate should be regarded as a minimum order.186 In view of later cases involving widowers and young children,187 the case of Re Brown188 is now unlikely to be followed. In that case, the order was that the applicant be granted a life interest in the whole estate on condition that he pay off the mortgage and maintain the infant children of the marriage during their minority. Today, it is likely that in similar circumstances the widower would receive the whole estate. It is proper that the whole estate be given to the husband where the greater part of the wife’s estate was provided by him and there are no children of the marriage or other relatives to be considered.189 Remarriage by an applicant widower should not operate as a bar to the claim.190 If an applicant has been married to the deceased for many years, provided most of the funds for the purchase of the matrimonial home and there are no competing claims, a life interest is not likely to be regarded as adequate provision for a widower.191

General observations on claims by a spouse may be found in Epov v Epov [2014] NSWSC 1086 at [139]–[152]. Table 4.7 digests cases involving claims by widowers. [page 182]

[page 183]

[page 184]

[page 185]

[page 186]

[page 187]

[page 188]

[page 189]

[page 190]

[page 191]

De facto widowers/partners 4.24

An application by a de facto widower/partner may be

brought in all states and territories.192 The relevant factors which determine whether a de facto widower/partner is eligible to apply are the same as those applying to a de facto widow/partner.193 Proof of the existence of a de facto relationship is sometimes a stumbling block to success. A few examples will suffice. In Ingamells v WA Trustees194 25 affidavits were filed and 15 witnesses were called to prove the existence of a de facto relationship. The trial judge and the Court of Appeal held that the necessary relationship did not exist. In Piras v Egan195 an applicant was held not to be a de facto partner of the deceased where he kept a separate residence, kept separate finances, did not perform any household duties and was unable to establish that he and the deceased were ever represented as living as husband and wife. An applicant, relying mostly on his own testimony, was unable to prove the existence of a de facto relationship as defined in the relevant legislation in Sadiq v NSW Trustee & Guardian.196 An application was also dismissed in Sedgwick v Varzonek197 where the relationship was virtually finished by the date of death, there was no common residence, finances were kept separate and there was evidence that the deceased regarded the applicant as no more than a friend. The onus of proof that a de facto relationship existed lies on the applicant.198 In the absence of corroboration, the court must exercise considerable caution before accepting the applicant’s evidence on this issue.199 Even if a de facto relationship is proved, there may be other difficulties in the way of success. A courageous application was considered in [page 192]

Samsely v Barnes.200 There, the applicant’s assets far exceeded those of the estate and were considered sufficient for the applicant’s need and thus further provision was refused. The broad general rule stated in Luciano v Rosenblum201 was held to apply to a de facto widower/partner in Collett v Knox.202 General observations on claims by a de facto spouse as defined in s 21C(2) of the NSW Interpretation Act 1987 may be found in Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 at [195]–[207]. Table 4.8 digests cases involving claims by de facto widowers/partners. [page 193]

[page 194]

[page 195]

Infant children 4.25 An infant child is prima facie entitled to support.203 Quantifying claims for very young children is always particularly

difficult because of the contingencies that inevitably must be provided for. Several of these contingencies are referred to in Bosch’s case.204 For example, the widow might remarry and have further children, her second husband might be a man of slender means and the estate which she has might be no more than sufficient to enable her to make provision for the proper maintenance of her second husband and the children of her second marriage. Other possibilities may include a falling out between the deceased’s widow and her second spouse and/or the children of the first marriage while they are still infants, or some financial disaster striking before those children become selfsufficient. As a general rule, one cannot expect the court to order what amounts to a legacy,205 or an aliquot share,206 or what the child would have received on intestacy.207 The cases give no guide as to how such a claim should be quantified, but one method which may be used is to estimate the child’s needs on a weekly basis, multiply that figure by the number of years between the child’s age and, say, 18 years, discount that figure at the appropriate rate and then add on a figure for contingencies. While it has been said that proper provision does not amount to an aliquot share,208 it may in some cases be appropriate. It should be noted that, in Public Trustee v Brown,209 the will made provision for the two elder sons but not for the youngest son, who was aged five-and-a-half years. The youngest son was born after the will was made and Edwards J considered that the reason for his exclusion was simply a blunder by the drafter of the will. The youngest child was treated by the court as being on an equal footing with the two elder sons. In Re Lade,210 on similar facts to those in Public Trustee v Brown, this approach was rejected and the child received only an equal share of the income rather than the

capital. Brown’s case was followed in Re Spence.211 It would seem that, where a child has been overlooked simply because that child was born after the will was made and the [page 196] will does not provide for other than named children, the proper course may well be to give an equal share to that child. As a general rule, the provision made by the court does not exceed what the child would have received on intestacy. Where the provision ordered has exceeded the intestacy share, special circumstances existed. For example, in Public Trustee v Brown212 a married daughter who was excluded from the will did not apply. In Re H213 and Cope v Keene,214 the deceased had been married twice and some or all of the children of the first marriage were self-supporting. Although the fact that a child is ex-nuptial is no longer relevant because of status of children legislation, an ex-nuptial child who was excluded because of the intestacy rules was treated in former times, namely in Re Wren,215 as an equal with the lawful child. Sometimes, a child will be the beneficiary of a superannuation or life insurance policy. An infant child is no different from any other applicant and there is no doubt that such benefits are a factor which must be taken into account in determining whether proper provision has been made for the child.216 Substantial gifts by a deceased’s widow to an applicant grandchild were taken into account in Re Izard.217 In the same case, the applicant received a substantial income from the estate of her great-grandfather after the deceased’s death and this was also taken into account. The end result was that the benefits received nullified any claim that the

applicant might have had because, as it turned out, she had no need for further maintenance and support. If a child, particularly one of very tender years, is removed by one spouse from the household (for example, on separation or divorce) so that contact between that child and the other spouse is minimal or even non-existent, the absence of contact between the deceased and the child is not a factor which assumes any significance.218 As North J said in Re Buffalora,219 if it were to be taken into account, it would ‘be perilously near visiting the sins of the parents on the children’. In that case, the child was removed from the testator’s custody at the age of two. She was eight years old at the date of his death and 11 years old at the date of hearing. The position may change if the absence of contact continues for many years into the adult life of the child.220 [page 197] Where there has been a separation, the child is financially comfortable (in the sense that the spouse who is caring for the child is easily able to supply the child’s needs) and the deceased was not supporting that child, no order will be made principally because of the lack of need.221 The result is the same where the infant is a grandchild of the deceased and the infant’s parents, who are also applicants, are able, with the assistance of an order from the court, to support that infant.222 An order was refused in a small estate where the mother of the applicant children, who was a former wife of the deceased, was able to supply the children’s needs and the principal beneficiary, a second wife, was in a poor financial position.223 An order was refused where an infant received substantial benefits under her father’s will, even though they were much

lower than those received by her brother.224 Although the court considered these disproportionate provisions unfair, it could not be said that the will made inadequate provision for her. A child born posthumously may apply, the rationale being that the claim is analogous to claims under Lord Campbell’s Act which have been allowed by the courts.225 In the Australian Capital Territory and the Northern Territory, a posthumous child is deemed to have been born before the death of the deceased.226 Under s 57(1)(c) of the NSW Act, a ‘child of the deceased person’ is eligible to apply to the court for a family provision order. In s 57(2), if the deceased person was in a de facto relationship, or a domestic relationship within the meaning of the Property (Relationships) Act 1984 (NSW), at the time of death, a reference to a child of the deceased person includes a reference to the following: 1.

a child born as a result of a sexual relationship between the parties to the relationship;

2.

a child adopted by both parties;

3.

in the case of a de facto relationship between a man and a woman, a child of the woman of whom the man is the father or of whom the man is presumed, by virtue of the Status of Children Act 1996 (NSW), to be the father (except where the presumption is rebutted);

4.

in the case of a de facto relationship between two women, a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996 (NSW); [page 198]

5.

a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998 (NSW)).

A child of a surrogacy arrangement where a parentage order has been made is also a child of the deceased.227 Table 4.9 digests cases involving claims by infant children, whether natural or adopted. [page 199]

[page 200]

[page 201]

[page 202]

Ex-nuptial children History of the legislation

4.26 In the early years of this legislation, no provision was made for applications by ex-nuptial children. The first jurisdiction in Australasia to allow such claims was Tasmania.228 The amending Act there came into force on 1 January 1936. The next jurisdiction to allow such claims was New Zealand. Its 1908 Act was amended by the Statutes Amendment Act 1936 (NZ) s 26(1).229 Seven years later, Queensland and South Australia followed this lead.230 Most other states and the two territories followed at a somewhat leisurely pace.231 New South Wales resisted this trend until status of children legislation was introduced in 1977.232 In relation to the definition of ‘a child of the deceased person’ in s 57(1) of the NSW Act, see 4.25. Today, the fact that an applicant’s parents have not married each other is of no consequence. Both territories and all states, except Western Australia, have status of children legislation which provides in general terms that the relationship between parent and child is to be determined irrespective of whether the father and mother are, or have been, married to each other.233 In Western Australia, ‘child’ is defined in the relevant legislation as including an ex-nuptial child.234 [page 203]

Proof of paternity and maternity generally 4.27 All jurisdictions which have status of children legislation provide for declarations of paternity by the court235 but only four (New South Wales, the Australian Capital Territory, the Northern Territory and Tasmania) provide for declarations of maternity.236 As a general rule, evidence of an admission of parentage (such as a signature on a birth certificate) is evidence of paternity or

maternity, as the case may be.237 In practice, proof of paternity depends largely on admissions by the deceased.238 In Queensland, an ex-nuptial child is unable to apply for provision where the deceased is the applicant’s father until a declaration of paternity under the Status of Children Act is made.239 In South Australia, the personal representative may (by notice in writing) require proceedings to be taken to seek a declaration that the child is in fact an ex-nuptial child of the deceased. These proceedings must be commenced within three months of such notice being given, otherwise the claim of an ex-nuptial child may be defeated.240 ‘Proceedings’ in s 7 of the Family Relationships Act 1975 (SA) is not confined to legal proceedings and includes any process leading to registration of a birth.241 An applicant child may be eligible to apply as a child of a child of a testator under s 6(h) of the SA Act where that child’s parent is not the biological child of the testator, provided the testator has acknowledged paternity of that parent in accordance with s 7(b) of the Family Relationships Act 1975.242 As to general observations which may be relevant to claims by adult applicants, see 2.9. [page 204]

DNA tests to determine relationship 4.28 DNA testing may be used to determine paternity or maternity. In many jurisdictions the court may order a person to submit to testing.243 Where no specific legislation empowers the court to order a DNA test, the court may not have inherent jurisdiction in this regard. This was the view of the Western

Australian Court of Appeal in Furesh v Schor.244 However, in the earlier case McComish v Sharpe245 it was held that a DNA test could be ordered based on the court’s inherent jurisdiction. The power to require a person to submit to a blood test does not include the testing of siblings.246 However, some jurisdictions have now given their courts power to require other persons to submit to a test.247 Where a DNA test would not determine a parent relationship, an application to have an applicant tested is likely to be refused.248 Generally speaking, it may be said that the court will prefer to order a test than not to. In Govers v Luff,249 Young J said: The cases under the Act suggest that where there is power to make an order for blood tests in order to determine the question before the court then unless there is something to the contrary, the test should be ordered because the court needs to know the truth.

A similar view was expressed in Re Aston.250 If a person refuses to submit to testing, the court may draw an adverse inference from the refusal.251 In some jurisdictions, the ability to make an adverse inference is contained in legislation.252 However, the fact that the court may draw certain inferences because of a refusal to submit to a blood test is not a factor in the exercise of the court’s discretion in requiring a parentage testing procedure to be carried out.253 As to general observations which may be relevant to claims by adult applicants, see 2.9. [page 205]

Unmarried daughters 4.29 Until the late 1940s, if not at a slightly later time, the courts’ attitude to claims by unmarried daughters reflected the then prevailing general community attitudes.254 Unmarried

daughters were seen to be at a disadvantage because of their lower earning capacity and limited paid employment opportunities. They frequently remained at home until marriage and orders tended to be more generous to them than to their brothers255 or married sisters.256 However, as mentioned, the courts do have regard to changes in community attitudes257 and this is particularly noticeable in claims by unmarried daughters. As far back as 1972, Hoare J said that, with changes in our social conditions and with more women engaged in employment, some of the distinctions between adult daughters and adult sons will diminish. His Honour said:258 There seems no reason in principle why an adult daughter in good health, in a settled occupation, earning as much as an adult son, and with similar economic prospects, should be treated more favourably than a son.

A similar view was expressed a few years later in Re Anderson.259 More recent unreported decisions tend to reflect this view260 and thus the older cases261 must be read with some care. On questions of quantum, they would have little relevance today. It is submitted that unmarried daughters should be treated in the same way as sons. Of course, a daughter: who is well off;262 who fails to provide adequate information about her financial position;263 whose contact with the deceased over many years is minimal;264 or [page 206] who was briefly estranged from the deceased and advised the

court that she would give anything she received from the estate to her children;265 is likely to have her claim rejected regardless of whether the old or new approach is used. However, in any consideration of a parent– child relationship, there are no absolutes. Provision may be made where there has been an estrangement.266 A daughter who was severely physically disabled obtained substantial provision from the court in Nenke v Nunn.267 As to the duty of a deceased to provide a home for a son or daughter, see 4.31. As to general observations which may be relevant to claims by adult applicants, see 2.9. For the definition of ‘a child of the deceased person’ in s 57(1) of the NSW Act see 4.25. Table 4.10 digests cases involving claims by unmarried daughters. [page 207]

[page 208]

[page 209]

[page 210]

[page 211]

[page 212]

[page 213]

[page 214]

[page 215]

[page 216]

Divorced daughters 4.30 An application by a divorced daughter whose former husband is not supporting her tends to be treated very much as an

application by an unmarried daughter because of the similarity of the situations. A daughter in this category who is able to support herself268 and any dependants269 is likely to have her application refused. If, however, she is suffering financial hardship270 or from a severe physical271 or mental illness272 or is a person who could be taken advantage of273 and as a result is unable to provide for her needs, an order is likely to be made for her. For the definition of ‘a child of the deceased person’ in s 57(1) of the NSW Act, see 4.25. As to general observations which may be relevant to claims by adult applicants, see 2.9.

Married daughters 4.31 Applications by married daughters in good health who are being supported by their husbands tend to be treated similarly to applications made by adult sons who are (or who are capable of) supporting themselves. They are not in a strong position as applicants, and in a number of cases their applications have failed.274 Where the daughter is married to a husband earning a low income, has dependent children or is otherwise in need, she may be awarded a sum equal to that received by her siblings under the will275 or she may be awarded a substantial share of the estate.276 The fact that the [page 217] applicant’s children are being educated at a non-government school is a relevant factor to be taken into consideration.277 Provision is not limited to immediate needs. The daughter’s fortunes might unexpectedly change and some provision to cover

future possible misfortune may be justified. For example, a mortgage on the matrimonial home may become a great burden if the husband’s earning capacity were reduced.278 Other contingencies which have been taken into account include the probability that a health condition (such as increasing deafness279 or lameness280) would reduce employment opportunities281 and that the existing provision in a will might soon be inadequate to support the applicant.282 There has been a distinct change in attitude by the courts to applications by married daughters in recent years. For example, in Little v Angus,283 the New Zealand Court of Appeal said: ‘[W]e accept that the claims of married daughters are to be approached at the present day somewhat more liberally than in the past.’ Reference has already been made in 2.21 to the relevance of contemporary social attitudes. In Re Bodman,284 Hoare J said: In the case of a married daughter it is clear that the mere fact that she is presently supported by her husband does not disentitle her from claiming under the Act.

It will be noted from cases such as Blore v Lang,285 Re Salathiel,286 Cooper v Dungan,287 Little v Angus288 and Re Leonard289 that provision can be made, even though the married daughter is being properly supported by her husband. The basis for orders for provision in those circumstances have included: that she has a need for ‘added security should ill health again overtake her husband’;290 or ‘lest unexpectedly her fortunes might change’;291 or [page 218] ‘to give her a couple of pounds a year of her own, together with

the additional security of a little capital’;292 and to provide ‘a measure of independence and security for the future’.293 Perhaps the best expression of need for applicants in this category is found in the joint judgment of Fullagar and Menzies JJ in Blore v Lang, where their Honours say:294 In a case such as this, where the applicant is a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort, her need is not for the bread and butter of life but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit.

It follows that, in the case of large estates, it may be possible for a married daughter to claim that there has been a breach of moral duty to her. This arises because the deceased should have had regard to the various contingencies that might come her way;295 that is, as the estate is large, more substantial provision should have been made for these contingencies. If, as suggested above, adult daughters are now to be treated similarly to adult sons, it is likely that (except in New South Wales)296 the courts will insist that the same principles apply, namely, there must be, as a general rule, some special need or special claim before the court will consider making further provision for them. One example of a special need which is more likely to be found in the case of a daughter than in a son is the need for the support and education of a child.297 The examples of special need or special claim mentioned in the context of adult sons298 would no doubt also apply in the case of adult daughters. Again, it is a case of approach rather than jurisdiction. Where an estate has been left to a daughter’s children, it may be difficult for the daughter’s application to succeed.299 If the daughter is a spendthrift or alleged to be one, see 4.50. Where the deceased disliked the daughter’s spouse and as a

result made little or no provision for the daughter, see 7.15. [page 219] A circumstance relevant to the question of what is necessary for a daughter’s proper maintenance is that she no longer has to support and educate a child.300 A deceased person is under no obligation to provide a debt-free home for a son or daughter.301 However, there are a number of cases where the need to reduce a mortgage was held to be sufficient to justify an order and was the principal or sole reason for making an order in favour of a married daughter.302 In large estates, orders may be made to allow a son or daughter to buy a house or home unit.303 In small to average estates, proper provision is likely to amount to a substantial deposit for a home304 or, if the applicant owns a block of land and has some, but insufficient, funds to build a house on it, a small sum may be ordered for the construction of a house.305 In the exceptional case of Sprowles v Bertoldo the court awarded sufficient funds to allow the child to buy a home, even though the estate was modest.306 As to general observations which may be relevant to claims by adult applicants, see 2.9. For the definition of ‘a child of the deceased person’ in s 57(1) of the NSW Act, see 4.25. Table 4.11 digests cases involving claims by married daughters. [page 220]

[page 221]

[page 222]

[page 223]

[page 224]

[page 225]

[page 226]

[page 227]

[page 228]

[page 229]

[page 230]

[page 231]

[page 232]

[page 233]

[page 234]

[page 235]

[page 236]

Adult sons 4.32

Generally speaking, an adult son is not in a strong position

as an applicant.307 The reason is that, in the absence of evidence to the contrary, an adult son is expected to be able to support himself.308 Indeed, where an adult son, in good health and supporting himself and his family, has applied and there are no other factors, special need or special claim applying, his application has failed.309 No special principle is applied to claims by adult sons but, as was said in Re Sinnott:310 … the approach of the court must be different … some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act.

The key words in the passage quoted above are ‘generally speaking’. Clearly, his Honour was not asserting a rule of general application. His Honour was simply observing that the legislation was concerned with proper maintenance. An adult son who was able properly to maintain himself (and any dependants) was in all probability beyond the scope of the legislation. It is no exaggeration to say, as Ormiston J [page 237] said in Anderson v Teboneras,311 that this comment in Re Sinnott has sometimes been misunderstood. The Re Sinnott approach has been confirmed in a number of cases312 and considered of general importance313 or as relevant314 in others, and the existence of a special claim was regarded as relevant to the jurisdictional question315 in Goodchild v James.316 However, suggestions that an adult son must show some special need or special claim have been rejected by appellate courts in New South Wales317 and Victoria,318 and in a case at first instance.319 It is clear that what these courts rejected was the

elevation of the Re Sinnott approach to the status of a rule or general principle.320 The existence of a special need or special claim is an approach,321 not a test of jurisdiction.322 In our view a special need or claim should be considered as relevant to: 1.

rebutting any presumption which might exist that an adult son is prima facie able to support himself; and/or

2.

increasing the probability that the application will succeed.

As a formality, it should be noted that there is no requirement in the legislation that an adult son must prove some special need or special claim and, although highly unlikely, an order can be made in the absence of either.323 However, in practice an adult son faces a very difficult task if he is in good health and able to support himself and any dependants and is unable to establish a special need or claim.324 In New South Wales it has been held that a relationship consisting of nothing more than bare paternity does not necessarily preclude a claim because if a child had a strong case on factors such as need, size of estate and a lack of competing claims, a court could find that [page 238] that child was left without adequate provision for his or her proper maintenance.325 In practice, an application based on mere paternity is likely to fail.326 4.33 There are no rigid rules as to what constitutes special need or special claim.327 However, as a guide to factors which have

found favour with the courts as constituting a special need or special claim, the following examples have been identified. A son may: have a need arising from youth, inexperience in business and financial vulnerability as a recently married man;328 have contributed to the building up of the testator’s estate;329 have helped the testator in other ways;330 suffer from some physical or mental infirmity;331 have suffered a financial disaster;332 be unable to find employment;333 have a number of dependants and be unable to provide for them;334 have a need to pursue higher education;335 [page 239] have a need for provision against insecurity from the possibility of illness or unemployment;336 have based his lifestyle on the expectation that he would receive a share of his parent’s estate;337 and be the victim of a misunderstanding by the deceased.338 Inequality of provision, even if resulting in unfairness, does not justify a claim under the Act.339 However, in some circumstances, equality may amount to proper provision.340 4.34 Applications by adult sons have figured prominently in a number of cases where the estate was large.341 As previously indicated,342 special principles may be seen to apply to such estates. If the son is a spendthrift or alleged to be one, see 4.50.

Where the deceased disliked the son’s spouse and as a result made little or no provision for the son, see 7.15. A circumstance relevant to the question of what is necessary for a son’s proper maintenance is that he no longer has to support and educate a child.343 A deceased person is under no obligation to provide a debt-free home for a son.344 As to general observations which may be relevant to claims by adult applicants, see 2.9. If there has been an estrangement between the son and the deceased, see 2.10. In New South Wales appropriate provision will be determined in accordance with the exercise required by s 60(2) of the NSW Act. Table 4.12 digests cases involving claims by adult sons. [page 240]

[page 241]

[page 242]

[page 243]

[page 244]

[page 245]

[page 246]

[page 247]

[page 248]

[page 249]

[page 250]

[page 251]

[page 252]

[page 253]

[page 254]

[page 255]

Alcoholic sons 4.35 An adult son who is an alcoholic is in an uncertain position as a claimant. On one view, a testator has not failed in his

moral duty by not providing for such a son.345 A refusal to make an order might also be justified on the basis that additional funds are of no benefit to the applicant, but rather for the benefit of hotels and breweries. Another view is that it should be made, but conditionally on his abstaining from the use of intoxicating liquor.346 Ray v Moncrieff was distinguished in Re Fletcher347 on the basis that the applicant in the former case was a chronic alcoholic at the date of the application, whereas, in the latter case, the applicant’s alcoholism is spoken of in the past tense, thus implying that he was not drinking heavily at the date of the application. It is debatable whether such a distinction serves any useful purpose. Sometimes an adult son falls into the category of one of life’s failures or, as Philp J put it, ‘a lame duck’.348 The cases are full of examples of ‘lame ducks’.349 However, a testator still has a duty to provide for those of this description among his or her offspring, provided they are not morally or otherwise undeserving.350 Provision was made for a reformed alcoholic son in Grey v Harrison.351 It may well be that in the light of these observations the approach in Re Fletcher is to be preferred to that in Ray v Moncrieff. In Hunter v Hunter352 substantial provision was made for an adult son who drank heavily. As to general observations which may be relevant to claims by adult applicants, see 2.9. [page 256]

Stepchildren

4.36 Applications may be made by stepchildren in all Australian states and territories.353 Most jurisdictions do not define the term ‘stepchild’. Where it is defined, the definition is in terms of a child by a former marriage of the deceased’s spouse.354 The implications of this definition have emerged only in recent years. If the children of a first marriage have stood aside in order that their father might make adequate provision for a widow of a second marriage, and upon her death there are assets in her estate, the amount left by their father to the widow may be relevant to the question whether she is responsible to provide for them.355

Queensland Historical background 4.37 The interpretation of the term in Queensland resulted in a most limited class of persons able to claim as a stepchild. The first reported case to consider the status of stepchild was Re Trackson.356 In that case, it was held that the step-relationship does not cease on the death of the natural parent. It was said that:357 neither the statute, commonsense, nor ordinary English usage contemplates this … Once the relationship of ‘stepchild’ is established, irrespective of whether the natural parent is alive or not, the applicant has a right to make an application under the Acts.

In effect, what was held was: once a stepchild always a stepchild. This view was accepted as correct in Re Nielsen358 and in Re Burt359 (at first instance). The Queensland Full Court had an opportunity to consider the matter in Re Burt360 on an appeal from the decision of Shepherdson J at first instance. It accepted the definition suggested

in Re Cook361 and held that the relationship of stepchild and stepparent does not [page 257] subsist after the termination of the marriage which created it. The Full Court overruled Re Trackson, Re Nielsen and Re Burt (at first instance).362 In the latter case the natural parent had been the applicants’ father who died many years before the step-parent. The Full Court held that the applicants ceased to be stepchildren on the death of their father. MacPherson J said that:363 In order to constitute an applicant the ‘step-child’ in relation to the deceased person referred to in s 90 of the Act, the applicant must be the child by a former marriage of one who is the husband or wife of that person at the date of death of the latter.

The Full Court in effect said the step-relationship only exists, for the purposes of the legislation, where the step-parent had died and the natural parent had survived and, at the date of death of the step-parent, the marriage between them subsisted. Two members of the court suggested that there was a possible exception to the definition, namely, that a child could be a stepchild where there were surviving children of the marriage that created the steprelationship.364 That exception was held not to exist in Re Danes.365 4.38 As a result of these decisions, the position prior to amending legislation in 1997366 may be summarised as follows: a stepchild can only apply if he or she is a child of a parent who has survived the deceased and the marriage which produced that relationship was still in existence at the date of death of the deceased. The question of whether a person is a step-parent is decided as at

the date of the deceased’s death. Accordingly, as long as the steprelationship existed at the date of death of the step-parent, it does not matter that the natural parent dies before the application is brought to court.367 The Full Court decision in Re Burt applied to the previous Succession Act in Queensland.368 The definition was changed when the 1981 Succession Act came into force on 1 January 1982 but, in Re Marstella,369 the Full Court held that the change in wording made no difference to the meaning of the term as determined in Re Burt. Macrossan J (as he then was) highlighted the arbitrary result produced by the then definition in that, whatever the length of the relevant [page 258] marriage, the stepchild might have a claim if his or her natural parent dies a short time after but not if such parent dies a short time before the day on which the deceased, the spouse of such parent, dies. In the first edition of this text (1993) we said that considerable injustice could result from this interpretation of ‘stepchild’, and the intervention of the legislature was warranted.

Current position 4.39 In 1997, the Queensland Parliament amended the definition in s 40 of the Succession Act 1981 by inserting a new s 40A(3).370 This section provides that a person is a stepchild of a deceased person if he or she is a child of a spouse of the deceased person and the marriage which produced the relationship of stepchild and step-parent was subsisting at the death of the child’s parent. It also provides that the relationship of stepchild and step-

parent does not cease merely because the deceased person remarried after the death of the stepchild’s parent, provided the deceased person’s marriage to the parent subsisted when the parent died. 4.40 In Re John,371 it was held that s 40A was passed to override judicial decisions in Re Burt,372 Re Marstella373 and Re Monckton374 (that is, to change the law) and therefore did not have retrospective effect. Accordingly, a stepchild, as defined by s 40A, can bring a claim only in respect of the death of a deceased person occurring on or after 20 June 1997, being the date of commencement of the new section. A stepchild under 18 years of age may claim in the estate of a de facto spouse of that person’s parent if the stepchild was a dependant of that de facto spouse.375 If an adult person is a child of a de facto spouse of a deceased person, he or she may apply in the estate of the step-parent if the parent survives the step-parent. If the parent predeceases the step-parent, the position is unclear as s 40A(3) only removes doubt about the subsistence of the steprelationship where the parent and step-parent’s marriage subsisted when the parent died. It may be that the position reverts to the law prior to the 1997 amendment saying that the step-relationship ceases where the parent predeceases the step-parent.376 Clarification by the legislature would be desirable. [page 259]

Tasmania 4.41 In Tasmania, the definition of stepchild was changed in 2015 to provide that, in relation to a person, a stepchild is a child

of that person’s spouse and a child whose natural parent was the spouse of that person at the time of the natural parent’s death.377 However, the recent change does not apply in the case of a claim against the estate of a person whose death occurred before the commencement of the 2015 amending Act.378

Victoria 4.42 Stepchildren could not apply in Victoria before the Wills Act 1997 amended the Victorian Act379 but, as a result of that legislation, they were then able to apply.380 They now apply as eligible persons under the Victorian Act as amended in 2014.381

Eligibility of stepchildren to apply in other jurisdictions 4.43 As far as eligibility to apply is concerned, special requirements exist in the Australian Capital Territory, New South Wales, the Northern Territory, South Australia and Western Australia. In Western Australia, the Australian Capital Territory and the Northern Territory, the stepchild must be a person who was maintained by the deceased person immediately before his or her death.382 In addition, in Western Australia, a stepchild may also apply if the deceased received or was entitled to receive property from the estate of a parent of the stepchild, otherwise than as a creditor of that estate and the value of that property is greater than the prescribed amount.383 In New South Wales, stepchildren were not eligible to apply under the 1916 Act.384 Today, they may apply as ‘eligible’ persons if:385

at any particular time, they have been wholly or partly dependent386 upon the deceased; and [page 260] at that particular time or at any other time they have been a member of a household of which the deceased person was a member;387 and the court is satisfied that there are ‘factors warranting’ the making of the application.388 The New South Wales Court of Appeal has held that the word ‘partly’ in the phrase ‘partly dependent’ suggests the meaning ‘more than minimally’ or, perhaps, ‘significantly’.389 As to ‘factors warranting’, see 2.58. In New South Wales, a stepchild may be ‘a child of [a] deceased person’ for the purposes of s 57(1) of the NSW Act. See the commentary in 4.25. In South Australia, the stepchild, which includes the child of a domestic partner, must be a person who was being maintained wholly or partly by the deceased immediately before the deceased’s death or was ‘legally entitled’ to be so maintained even if actual maintenance was not being provided.390 As to general observations which may be relevant to claims by adult applicants, see 2.9.

Approach to claims 4.44 A stepchild is not necessarily treated on the same footing as a natural child in all cases. It is a factor to be taken into account in determining the moral obligation of the deceased to an applicant. Depending on circumstances, including, for example:

the age at which the relationship was assumed; the extent of other existing provision for the applicant; the actual degree of dependence; the extent to which responsibility for maintenance and advancement has been assumed by the deceased; the step-relationship may justify differential provision by the court between classes of children,391 but the ordinary principles apply.392 In New South Wales it has been held that relevant factors which the court should consider are: the closeness of the relationship; [page 261] whether the applicant was brought up as a permanent member of the family; the age of the applicant when he or she became a member of that family; the extent of the applicant’s support by the deceased.393 It would appear that dependency required for a stepchild to be an eligible applicant must be ‘direct and immediate’. See 4.67 where this is discussed. In Victoria a stepchild has a right to apply either under s 90(c) or s 90(f) of the Victorian Act. Cases from other jurisdictions are said not always to be helpful because of legislative differences.394 The children of the first marriage may have stood aside to allow a deceased spouse to make provision for the surviving spouse. This fact may be relevant to the question the court has to answer, but it is really only one of the matters to be considered by the court.395

In the case of stepchildren, however, there are circumstances of special relevance to be considered, namely:

two

whether the step-parent’s assets have been derived in part from the funds or resources of the natural parent of the stepchild;396 and where there are both natural children and stepchildren, whether the relationship between the applicant and the deceased was such that a lesser provision (referred to in Re Lockwood397 as ‘differential provision’) should be made for the stepchild. However, in the general run of cases, an applicant who was a stepchild will be treated like any other child and the usual tests of need, moral claim, competing claim, conduct disentitling and other circumstances would be taken into account in determining what is adequate provision. Table 4.13 digests cases involving claims by stepchildren. [page 262]

[page 263]

[page 264]

[page 265]

[page 266]

[page 267]

Adopted children 4.45 In the early years of adoption legislation, doubts were raised before the courts as to whether an adopted child could

apply for provision out of the estate of his or her adoptive parent. The doubts arose because the legislation did not specifically cover succession to property, although for most purposes the adopted child was required to be treated as though he or she were the natural child of the adoptive parents. These doubts were resolved in several cases in the mid 1950s, the result being that an adopted child could apply.398 The problem is best illustrated by a consideration of Dehnert v Perpetual Executors and Trustees.399 At the date of the testator’s death, the relevant Victorian adoption legislation provided that the adopted child was to be treated as the child of his or her adoptive parents ‘in respect of future custody, maintenance and education’.400 It did not cover the question of succession to property generally. The High Court held that the applicant there was entitled to apply because of the effect of an adoption order on the adopted child’s future maintenance.401 At about the same time as these cases were decided, amending legislation was introduced in Victoria which treated the adopted child as a child of the adoptive parents for all purposes, and gradually this legislation spread to all Australian states and territories. In jurisdictions other than Victoria, the current position is that an adopted child can apply in the estate of his or her adoptive parents and, in so doing, is regarded as the natural child of those parents402 and cannot apply in the estates of his or her natural parents.403 In New South Wales, pursuant to s 95 of the Adoption Act 2000 (NSW), the adopted child is regarded as the child of the adoptive parent or parents and ceases to be regarded as a child of the birth parents. Accordingly, an adopted child is ‘a child of the deceased’ adoptive parent for the purposes of s 57(1) of the NSW Act. See the commentary in 4.25. However, an adopted child may apply in the estates of his or her natural parents provided there

was dependency at a particular time, membership of the deceased’s household at that time and factors warranting the [page 268] application.404 In Victoria, there is no restriction on a child applying in the estates of either of his or her natural parents. However, in the only case where the issue appears to have been considered, the claim was rejected. The deceased was held in the circumstances of the case not to have responsibility to make provision for the applicant.405 An adopted child under 18 years of age or one who is a full-time student between 18 and 25 years or one who has an intellectual disability is an eligible person under the Act as amended in 2014.406 An adult adopted child is also an eligible person under the Victorian Act,407 but, as with other adult children, the court, in determining the amount of provision to be made, must take into account the degree to which the adult adopted child is not capable, by reasonable means, of providing for that child’s proper maintenance and support.

Recognition of foreign adoptions 4.46 If an adopted child wishes to make an application in one jurisdiction but that child has been adopted in another, the question arises: is that adoption recognised within the jurisdiction where the application is being made? The answer depends on the view of the domestic law of the jurisdiction where the application is made as to the effect of the adoption in the jurisdiction where it took place. Usually the adoption is recognised.

The position is clear if the adoption occurred within Australia as there is uniform legislation which provides that an adoption order made in one state or territory has the same effect as an adoption order made in any other state or territory.408 Recognition of a New Zealand adoption order within Australia is granted as of right in Queensland, Tasmania, Victoria and Western Australia but in the other states and territories, New Zealand adoptions are treated like any other foreign adoption and recognition is granted subject to certain conditions being met. These conditions are as follows, except in Queensland and Western Australia (which do not require condition 2 below), South Australia (which does not require condition 4 below), the Northern Territory [page 269] (where s 6 of the relevant Act requires both the adopters to be domiciled or resident and the child present in the territory on a date which is within 21 days of the adoption application being filed in court), and New South Wales (where the regime in Pt 2 of Ch 5 of the Adoption Act 2000 applies, dealing with Australian and overseas adoptions): 1.

the adoption must be effective according to the law of the foreign country;

2.

at the time at which the legal steps that resulted in the adoption were commenced, the adopter, or each of the adopters was resident or domiciled in that country;409

3.

in consequence of the adoption the adopter or adopters had, or would have had (if the adopted person had been a young child), immediately following the adoption, according to the

law of that country, a right superior to that of any natural parent of the adopted person in respect to the custody of the adopted person; and 4.

under the law of the foreign country the adopter or adopters were, by virtue of the adoption, placed generally in relation to the adopted person in the position of a parent or parents.410

Where an applicant is adopted outside Australia, the facts as set out above, which allow recognition, must be proved strictly.411

Right to apply in the estate of a natural parent 4.47 Whether an adopted person’s right to apply in the estate of his or her natural parents is destroyed by an adoption order made after the date of death of the natural parent depends partly on the adoption legislation of the jurisdiction where the application is proposed and partly on the attitude which the court takes to questions of status in family provision applications. In New Zealand, s 16(2)(d) of the Adoption Act 1955 provides that an adoption order does not affect any vested or contingent right of the adopted child or any other person under any deed, instrument, [page 270] will, or intestacy where the adoption order is made after the deceased’s death. It is doubtful whether a right to apply to the court can be equated with a right in intestacy and it was apparently this doubt which prompted Mahon J in Re O412 to have reservations as to whether s 16(2)(d) applied to rights under the Family Protection Act 1955. He chose instead to base his

decision on the Court of Appeal decision in Bailey v Public Trustee.413 In that case, the Court of Appeal held that the status of a wife or husband as a possible claimant under the Act is fixed once and for all at the date of death and that subsequent remarriage does not operate as a jurisdictional bar to such a claim. Applying this reasoning by analogy to applications by adopted children, Mahon J held that an infant who is a child of the deceased at the date of death does not lose the right to make a claim if he or she is subsequently adopted.414 4.48 In the English case of Re Collins415 it was held that a child lost the right to apply in his parent’s estate if the child is subsequently adopted. That case considered the English equivalent of New Zealand’s Adoption Act 1955 s 16(2)(d) and came to the conclusion that the right to apply to the court under the Inheritance (Provision for Family and Dependants) Act 1975 was not an interest vested in possession or an interest expectant and, therefore, s 42(4) of the English Adoption Act did not have the effect of preserving an applicant’s right to apply after an adoption. Thus, the doubt expressed in Re O was resolved in the negative in Re Collins. However, Re Collins did not consider the decision of the New Zealand Court of Appeal in Bailey v Public Trustee that questions of status for the purpose of applications under the Act are fixed once and for all at the date of death. Instead, Re Collins held that, on the making of an adoption order, the child was no longer a child of the deceased and therefore had no right to apply. In view of the support in Australian and New Zealand courts for the proposition in Bailey’s case that in family provision applications questions of status are determined at the date of

death,416 it is likely that Re O would be followed in Australia, rather than Re Collins. As to general observations which may be relevant to claims by adult applicants, see 2.9.

Approach to applications by adopted children 4.49 There is no doubt that the moral duty of an adoptive parent to an adopted child is the same as that which he or she owes a natural [page 271] child.417 This does not mean that the fact that a child is adopted is never relevant in a family provision application. As was said in Re S:418 There may be cases where the fact that a child is adopted and the age on adoption and the period of adoption may be relevant in determining the nature and extent of the moral claim of an applicant.

Accordingly, the fact of adoption may be relevant in a case where a child was adopted during teenage years and the period between the date of adoption and the date of the deceased’s death is short and there are other natural children of the deceased. Another case may be where there are factors other than natural love and affection behind the adoption (for example, the need to prevent an enforced repatriation to a country which may be hostile to the child concerned). Apart from these cases, which must be regarded as rare, the normal rule applies, namely that the child must be treated as a natural child of the adoptive parent for all purposes.

In recent years, successful applications have been made by adopted children in Matthews v Wear,419 Evans v Perpetual,420 Butler v Morris421 and Hynard v Gavros.422

Spendthrift applicants 4.50 Within families, there is often a strong view that an eligible applicant who is a spendthrift has, or should have, little, if any, entitlement to share in the estate. However, there is ample authority to the contrary, although an order in favour of a spendthrift may be structured to take account of this propensity. In Howarth v Reed423 Powell J said: in one sense it does not matter if I form the view that a plaintiff is a spendthrift. If a person is entitled to an order, what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money may be wasted on wine, women and song in a short period of time. … On the other hand, when one is considering what a wise and just testator would have done, if one can see that a plaintiff is a spendthrift and the testator has arranged his will in such a way as to limit the funds flowing to the plaintiff, then one may very well come to the conclusion that the plaintiff has failed to establish that there has been any breach of moral duty.

[page 272] Similar views were expressed in Close v Close424 and Carroll v Cowburn.425 However, the fact that the applicant is a spendthrift can affect the form of the order.426 Protective orders427 have been made in cases where the applicant had brain damage,428 some mental illness,429 a combination of physical and mental problems,430 a propensity to dissipate money quickly,431 a gambling problem432 or where there was a strong probability that any money ordered by the court would be given to relatives.433 A protective order was not made in one case where the applicant

suffered from poor memory and had difficulty with concentration.434 Some applicants with a gambling problem have, however, not had orders in their favour constrained by a protective order.435 A protective order must always remain a possibility for the problem gambler.

Persons with an intellectual disability 4.51 Persons with an intellectual disability are, as a general rule, in a strong position as applicants. It is usually easy to establish some need (although not usually great) for such persons. While they may have pensions, there is often the opportunity for parents to provide for some added comfort and benefit to such persons which pensions cannot provide. However, as with applicants generally, no order will be made where the disabled person has sufficient funds for his or her needs or where, on the facts, he or she is unable to derive any real benefit from any order which might be made.436 A disabled applicant, like any other applicant,437 is obliged to place complete and accurate information concerning his or her financial and [page 273] material circumstances before the court. Failure to do so has resulted in the claim being dismissed.438

Persons institutionalised 4.52

Until the late 1940s, the common view was that, if a person

under an intellectual disability was confined in an institution run by the state, he or she had no special needs. Such applications were usually refused because it was said that any provision made by the court would benefit the state rather than the applicant.439 However, some judges took a different view and made orders in favour of such applicants.440 These opposing views were considered in Re Duff.441 The proper approach was said to be to refuse an order where the applicant does not receive any benefit and the effect of the order is simply to relieve public revenue.442 However, consideration should be given to making an order where the applicant receives a benefit even though in bringing about this result there is, or may be, some relief to the revenue. It was accepted that some small provision should be made by way of an annuity to provide for clothing and additional comforts. Although the report does not disclose the quantum of the order, it was noted that provision was made for the contingencies of the applicant’s being discharged from hospital or permitted to absent herself from it. A similar view was taken by McLelland CJ in Eq in Re WTN.443 Again, the report does not disclose the quantum of the order but it noted that provision was made for ‘extra comforts,444 extra clothing and outings’. More recent decisions445 suggest that Re Duff and Re WTN represent the current view and thus it may now be said that, if need is established, [page 274] provision will be made for applicants who are institutionalised to cover the following:

1.

extra comforts;

2.

extra clothing;

3.

outings; and

4.

the contingency that the patient might be discharged either temporarily or permanently.

In the 1940s it was held that the receipt by, or eligibility of, an applicant for a government pension is one of the circumstances of the case which must be taken into consideration.446 Recent authorities are not quite so dogmatic. For example, in Gunawardena v Kanagaratnam Sri Kantha447 Young CJ in Eq said: Mr Bradford submitted in the instant case that ‘The better and perhaps prevailing view seems to be that the court may take social service benefits into consideration, at least in cases where, as in this one, the estate is relatively small’. He cited Foster v Lisle [2003] NSWSC 1243, especially 55–60 and Ridge v Public Trustee [2006] NSWSC 400. I think that submission is probably correct.

On this line of authority ‘must’ has become ‘may’. In Oswell v Jones,448 Chesterman J considered Gunawardena’s case but preferred the statement by Bryson J in Whitmont v Lloyd449 which was approved by Sheller JA in King v Foster,450 viz: The availability of … pensions and other social benefits is a circumstance which should be regarded, and particularly in small estates it may be appropriate to leave an applicant wholly or partly dependent on them or to mould the provision made so that their availability is observed in whole or in part. The acceptance of benefits which statute law provides is in every way legitimate, involves no social stigma and incurs no disapproval from the court.

On this line of authority ‘must’ has become ‘should’. Whether ‘must’, ‘may’ or ‘should’ is the correct approach awaits resolution by an appellate court. What is clear, in our view, is that it is proper in small estates to mould an order so that the availability of government benefits is preserved. However, in large estates, it may be inappropriate to make orders along these lines. The effect of any order which might be made on such pension

should also be taken into account.451 [page 275]

Special disability trusts 4.53 The Commonwealth government introduced special disability trusts on 20 September 2006. Their purpose is to help a disabled person’s family members and carers by allowing private financial provision to be made for the care and accommodation of the disabled person without that person having to forfeit social security benefits. To qualify, a disabled person must meet the criteria set out in s 1209M of the Social Security Act 1991 (Cth). Initially the trust limit was $500,000. It is indexed according to the CPI on 1 July each year and the limit now stands at $636,750. A special disability trust may be created by a testamentary trust or inter vivos by deed. A model trust deed is available from the website of the Department of Social Services. Provision for a special disability trust was made in a family provision order in Oswell v Jones.452 A settlement involving an intellectually disabled person included a special disability trust and it was sanctioned by the court in Maas v O’Neill.453 It follows that where funds are available or likely to be available from a court order for a person under an intellectual disability, and are sufficient to establish a special disability trust, and s 1209M of the Social Security Act 1991 is complied with, the disabled person’s legal advisers need to consider either setting up a special disability trust or arrange for the court to create one as part of the final order.

Persons living in the community 4.54 Where the disabled person is living in the community, different considerations apply. In Re Musgrave,454 the applicant was a 60-year-old man living in a nursing home. He suffered from Down’s syndrome. He was a very active person who carried out odd jobs around the nursing home. He went on occasional outings when they were organised by the home. It was said he wanted to visit his sister on a regular basis and that such visits would be good for his morale. The sister lived a short distance away and the visits could only occur if he travelled by taxi. The Public Trustee held almost $8000 for him at the date of the application. Although he had other needs (namely, health insurance and an increasing gap between his pension and accommodation fees) and special provision was made for them, provision was made also for the usual items referred to above (on the basis of a weekly need of $13). It was ordered that he receive the income of a discretionary trust fund of $14,000. [page 276] In Re Zechen,455 the applicant was a 50-year-old male living on the family farm. There was evidence that, although he had a mental age of eight years, he was able to operate the farm. There were no competing claims. The order made was that the whole estate be held by the Public Curator upon trust for the applicant. Clearly, applicants with an intellectual disability living in the community are likely to receive higher awards than those confined to an institution. Where a person with an intellectual disability is a beneficiary in

an estate, the court will not make provision for an applicant by reducing that beneficiary’s share on the basis that the state will provide for that beneficiary.456 However, where the applicant’s need is great and the estate is small, social security benefits may be taken into account when making an order.457

Procedural steps 4.55 The solicitor for such an applicant should first be satisfied that the person has needs which cannot be met from his or her existing income and assets. Once that is established, the solicitor should seek to quantify those needs to see whether an application is justified. If an application is to be made, a family member (or possibly the Public Trustee) should be requested to act as a litigation guardian458 for the purpose of making the application. Medical and occupational therapy/social work reports should then be obtained. The medical practitioner should be asked to express an opinion on the following points concerning the proposed applicant:459 1.

his or her general state of health, with a full report on any special health problems;

2.

his or her life expectancy;

3.

the possibility of improvement in his or her mental condition and the probability of leading a normal life in the future; and

4.

the specific medical needs and/or appliances which may be required in later life.

The occupational therapy/social work report should address the following:460 1.

his or her ability to manage money;

2.

the specific needs of the proposed applicant (such as TV set, reclining chair, clothing); [page 277]

3.

whether he or she would benefit from outings and, if so, how many per year should be provided for;

4.

need of the proposed applicant to visit relatives; and

5.

if it is likely that improvement in his or her mental condition may occur, what extra provision should be made.

When these reports and details of actual income and assets are obtained, counsel (where the profession is divided) should be briefed to advise on the prospects of success and the quantum likely to be awarded and to settle documents. In view of the difficulties faced by these applicants, it is unwise for an application to be made without counsel’s opinion supporting the bringing of the application. Clearly an appropriately supportive counsel’s opinion may serve to protect the former litigation guardian in these circumstances. If, for example, a claim is made and dismissed, there is a potential for the litigation guardian to be removed from office and a new one appointed, who may sue the former litigation guardian for wasting the patient’s money on fruitless litigation. If a potential applicant is living at home, the contingencies of higher medical costs and nursing home fees must be taken into account.461

Quantum 4.56

Until the late 1990s, orders made could only be described as

exceedingly modest. The reason was that most people with an intellectual disability lived in institutions and practically all of their needs were met by the state. In recent years there has been a shift from institutions to community housing. As a result, these applicants now have needs, in some cases substantial needs, which are not paid for by government. For example, they may need to buy furniture, linen, extra clothing, cutlery, some health equipment and also pay for much more travel than formerly. The extra travel usually requires administrative support and thus extra costs. Recent cases show that the courts are now making substantial orders in favour of these applicants.462 There are cases where, in unusual circumstances, the court has ordered the whole or most of the estate in favour of a person with a disability. In Reece v Warland463 there was evidence that the applicant needed his own home and was not eligible for institutional accommodation. The estate was left to a fifth wife who was financially comfortable. [page 278] Most of the estate was ordered to be applied towards the purchase and maintenance of a home for the applicant. In Hunter v Public Trustee NSW464 there were two disabled applicants and the small estate was left to the deceased’s sister who was financially comfortable. The court ordered that the applicants receive the whole estate. The form of order may not involve the transfer of property or the payment of money. All that may be needed in the case of a disabled person is a change in financial managers. For example, in Trapani v Ciocca465 there was considerable ill feeling between the trustees of the will, who were the deceased’s sister and nephew,

and the applicant’s litigation guardian, who was the applicant’s mother. The estate consisted of a small farm at Shepparton and some cash. The order directed the Registrar of Titles to lodge a caveat over the property to prevent any dealings without the leave of the court and to transfer management of the cash to the Senior Master. Obviously, quantifying claims requires a detailed knowledge of the individual needs of the applicant. These applicants cannot be treated as one amorphous mass. Within the general category of persons with an intellectual disability, there are particular needs associated with certain groups. Some of the more common groups are mentioned below.

Schizophrenia 4.57 Persons suffering from schizophrenia may need accommodation on an individual basis because they cannot share domestic space with others. In Spencer v Spencer,466 medical evidence was given that shared accommodation was undesirable for some persons suffering from schizophrenia. The provision of individual housing for such a person was regarded as essential in Inostroza v Dura.467 Not all persons suffering from schizophrenia have the need for individual housing, but it is a matter which should be investigated in such cases. Persons suffering from schizophrenia also appear to have a reduced life expectancy468 which may also be relevant to their claim.469

Down’s syndrome 4.58 Information on the person’s life expectancy should be obtained. Persons with Down’s syndrome have a shorter life expectancy than others.470 However, the gap has been closing in recent years.471 It may

[page 279] be noted that in Govers v Luff472 a medical practitioner gave evidence that the applicant in that case, a 31-year-old woman with Down’s syndrome, could expect to live to 70 years of age. The life expectancy of a normal 31-year-old female at that time was 77 years. Dr Carr said that persons with Down’s syndrome over 60 years of age were not exceptional and one had reached 75 years of age.

Cerebral palsy 4.59 Information on the person’s life expectancy should be obtained. In an article entitled ‘Decline in Function and Life Expectancy of Older Persons with Cerebral Palsy’,473 the learned authors say that persons with this disability who are unable to speak often do not survive to age 60.

Alzheimer’s disease 4.60 Two recent cases involving applicants with Alzheimer’s disease are Diggins v Lord474 and Weston v Public Trustee.475 The applicant in the first case failed. She was 79 years of age and had been living in a nursing home for two years before her husband’s death. Her income was more than sufficient for her needs. Given the advanced state of her disease, further money would have been of no benefit to her and her application was dismissed on that basis. She died before her case reached the court. The applicant in the second case succeeded. She was aged 88 years and lived in a retirement village. Apart from her mental disease, her general health was reasonable for her age. Her income met her expenses, but her only asset was the sum of $5000 in a bank account. Her husband left his estate (worth $67,375) to a friend. They had been married for 42 years. The court acknowledged that her needs were

limited, but ordered that she receive $40,000 to cover the contingencies of life.

Needs generally 4.61 It is clear that some disabled persons would benefit from more outings than others. Some have special health requirements. And then there is the vexed question of health insurance. It is far from clear when this should be included in a list of needs for an applicant. For example, in Re Musgrave476 an allowance of $7 per week for private health insurance was made by the court. In Richard v AXA Trustees Ltd477 the trustees agreed to pay for private health insurance as part of a negotiated settlement. In some cases there may be a conflict of [page 280] evidence on this issue, with a medico recommending private health insurance and an occupational therapist advising the opposite.

Victoria — payment to administrator 4.62 In Victoria, pursuant to s 66(3) of the Guardianship and Administration Act 1986, monies payable to a person with a disability in the first instance are to be paid into court. Thereafter, unless otherwise ordered in the exercise of the court’s discretion, the monies are to be paid out to the person’s administrator (if any) or to state trustees. However, the Associate Justice’s discretionary power to order that monies payable pursuant to that order are to be paid elsewhere, that is to the Senior Master’s Office, should only be exercised where there is something about the circumstances of

the particular case which justify departure from the normal rule established by parliament that they be paid to the disabled person’s administrator or to state trustees.478

Summary 4.63 The quantum/nature of the order reflects significantly the living environment of the applicant.

Persons living in the community 4.64 For this class of applicant, cases from number 17 in Table 4.14 give a useful guide to orders which might be expected.

Persons living in an institution 4.65 For this class of applicant, it is still the case that any order made is likely to be modest and will be intended to cover the needs indicated in 4.52. In most cases a discretionary trust fund will be the most suitable vehicle for making provision for the applicant.479 Where a lump sum is ordered, the quantum tends to be very small in comparison to the size of the estate. For example, in Re McNamara480 a sum of £730 was provided from a net estate of £22,000 and, in Deis v Deis,481 a sum of $5000 was provided from a net estate of $108,000. Against this trend of modest provision, Re Wood482 should be regarded as exceptional. In that case, the applicant daughter’s mother died intestate. The major beneficiary was her late husband’s son by an earlier marriage. Attention was drawn to the fact that the estate was derived from the deceased’s side of the family and not from her husband’s side. Obviously, the competing claim of the stepbrother

[page 281] was regarded as minor. There was evidence that the daughter would benefit by outings and holidays and her income shortfall was about £700 per annum. Her life expectancy was said to be not less than 30 years. Her assets totalled £3519 and her income (tax free) was £1037 per annum. It was therefore a case where the applicant’s proven needs were substantial and the competing claims were minimal. An order in the sum of £15,000 was made in her favour. If an annuity is ordered, the effect it will have on the patient’s pension must be considered because of the principle already referred to, namely, an order will not be made where the effect is simply to relieve public revenue.483 Mention should also be made of Re Abrahams,484 a case involving a 46-year-old male suffering from Down’s Syndrome. The parties reached a settlement which gave the claimant $140,000 out of an estate of $443,175. Because of his disability, the settlement required the court’s sanction. The trial judge refused to sanction the settlement because the amount exceeded the applicant’s needs. The Court of Appeal overturned this decision and sanctioned the settlement. This case shows that although orders for persons who are institutionalised tend to be modest, sometimes amounts can be substantial. Much depends on the needs assessment and the court’s view of this assessment. Table 4.14 digests cases where claims on behalf of persons with an intellectual disability have been successful. [page 282]

[page 283]

[page 284]

[page 285]

[page 286]

[page 287]

[page 288]

[page 289]

[page 290]

[page 291]

Other eligible applicants 4.66 All jurisdictions permit applications by persons other than spouses and children. Most limit applications to parents and/or

grandchildren. New South Wales and Queensland are less restricted in the categories of applicants who may claim. Since there are variations from jurisdiction to jurisdiction, it is useful to compare the particular requirements of each jurisdiction for other eligible applicants.

Grandchildren 4.67 All jurisdictions except Tasmania allow applications by grandchildren. In most jurisdictions the right to apply is hedged with qualifications. The position in the jurisdictions allowing applications by grandchildren is as follows: ACT Act s 7(3); NT Act s 7(3). The parent of the applicant grandchild must be a child of the deceased and must have predeceased the deceased or, if one or both parents are alive at the date of death, the grandchild must not have been maintained485 by that parent or either of those parents immediately before the death of the deceased. The phrase ‘immediately before the death of the deceased person’ refers not to the facts at the date of death but to the general arrangements for maintenance which existed during the deceased’s lifetime and which must be assessed as at the date of death.486 Such a view is consistent with the statement made by Sankey LJ in Lee v Munro487 that in ‘deciding whether or not there is dependency the facts to be considered are past events and future probabilities’.488 NSW Act ‘Eligible persons’ s 57(1)(e), (2)(e), s 59(1)(b). The applicant must have been at any particular time wholly or partly dependent on the deceased489 and, in addition, the court must be satisfied that there are ‘factors warranting’ the making of the application.490 They need not be dependent at the date of

death.491 The personal representative of a deceased grandchild is not an eligible person.492 As to ‘factors warranting’, see 2.58. Any dependency must be ‘direct and immediate’ so that a grandchild will not be dependent [page 292] on the deceased person if the latter is providing support to his or her own child and this incidentally benefits the grandchild.493 There have been a number of successful applications by grandchildren in New South Wales.494 General principles which may be seen as relevant to claims by grandchildren were articulated in Bowditch v NSW Trustee & Guardian,495 Griffiths v Craigie496 and Nicholas v Nicholas497 and were subsequently approved by the Court of Appeal in Chapple v Wilcox.498 These are, of course, for guidance only and should not be elevated to being a statement of principle. Qld Act s 40. The applicant must be wholly or substantially maintained or supported by the deceased (otherwise than for full valuable consideration)499 at the date of death and the applicant must be under the age of 18 years. SA Act s 6(h). No qualifications. For cases of successful applications by grandchildren in South Australia, see Re Puckridge,500 Re Frame,501 Re Lintern,502 Eckert v Starick503 and Wall v Crane.504 In Re McCaffrey,505 the claim of three grandchildren was dismissed, but provision was made for the applicants’ mother and provision for them was effectively subsumed in the order in favour of the mother. It was also suggested that, where the grandchild’s parent was also an

applicant, the cost of separate representation could not be justified.506 Vic Act s 90 ‘eligible person’, (i), s 91(4)(d), (5)(b). A grandchild is an eligible applicant but the court must be satisfied that: — the applicant was wholly or partly dependent on the deceased for that applicant’s proper maintenance and support; [page 293] —

at the time of death the deceased had a moral duty to provide for the applicant’s maintenance and support; and

—

adequate provision has not been made for that applicant.

The provision for that grandchild’s proper maintenance and support must be proportionate to the grandchild’s degree of dependency on the deceased at the time of the deceased’s death. A claim based solely on relationship has little chance of success.507 For a review of cases involving applications by grandchildren see MacEwan Shaw v Shaw.508 More recent cases where the deceased was held to have a responsibility to provide for a grandchild include Petrucci v Fields,509 Subusa v State Trustees Ltd,510 Day v Raudino511 and Smith v Jones.512 The question whether the deceased had a responsibility to provide for a grandchild will not arise in future because of the 2014 amendment to the Victorian Act.513 A grandchild’s claim was dismissed where the applicant’s relationship with the deceased was ‘certainly tenuous’.514 WA Act s 7(1)(d). The applicant must be a person who is being wholly or partly maintained by the deceased or, if a parent of

the applicant was a child of the deceased, that parent must have predeceased the deceased.515 General principles which have been seen as relevant to claims by grandchildren in New South Wales were seen as relevant in Western Australia in Buckeridge v Buckeridge.516 The moral duty which a testator may owe to a grandchild is often difficult to establish, but is more easily established if the grandchild is substantially without support (for example, where he or she is orphaned) and there are no seriously competing claims. However, it may be established in less obvious claims.517 The need, if any, of grandchildren must be measured to a large extent by the ability of their parents to provide for them.518 The New Zealand Act makes special provision for the approach the court must take to such applications. It requires the court to have regard [page 294] to all the circumstances of the case and to any provision made by the deceased or by the court in favour of either or both of the grandchild’s parents.519 This particular provision does not exist elsewhere, but there is no reason why courts would not follow a similar approach. An application may be made by a grandchild born after the death of the deceased.520 An order was refused in Re May521 where the estate was small and the testatrix was held not to be under a moral duty to provide for grandchildren.

Parents

4.68 All jurisdictions except Victoria allow applications by parents. Again, most jurisdictions hedge such applications with qualifications. The position in each jurisdiction is as follows: ACT and NT Acts s 7(4). A parent is unable to apply unless he or she was maintained522 by the deceased immediately before his or her death,523 or the deceased was not survived by a spouse or children. NSW Act ‘Eligible persons’ s 57(1)(e), (2)(e), s 59(1)(b). There is no specific provision for applications by parents, but they may apply if they qualify as ‘eligible’ persons.524 For a discussion of those qualifications and reference to the further requirement for an application, see 4.43. It should be noted that eligibility does not follow the general rule which applies in other jurisdictions, namely that dependency or maintenance of the applicant must be extant at the date of the deceased’s death. Qld Act s 40. The parent must have been wholly or substantially maintained or supported (otherwise than for full valuable consideration) by the deceased at the date of his or her death. For the meaning of these expressions, see 4.16. SA Act s 6(i). The parent must satisfy the court that he or she cared for, or contributed to the maintenance of, the deceased during his or her lifetime. In order to qualify under this provision, it is not necessary for this care or contribution to maintenance to have occurred during the whole of the deceased’s lifetime. It is sufficient if it occurred during some portion of the deceased’s lifetime.525 [page 295] Tas Act s 3A(c). The deceased must not have been survived by a widow or children.

WA Act s 7(1)(e). No qualifications.

Same-sex partners 4.69 Applications by same-sex partners are permitted in all states and territories.526 The relationship is described variously and most jurisdictions have some qualifications for the bringing of the applications. The following gives a brief synopsis. ACT. The applicant must have been either the deceased’s civil partner as defined in the Legislation Act 2001 or the deceased’s domestic partner of two or more years’ standing at any time.527 NSW. There are two possible bases for a claim, namely: 1. dependency528 (which is not confined to financial dependency529 but must be more than emotional dependency);530 and 2.

living in a domestic relationship.531 [page 296]

Whether a person is dependent on another is a question of fact.532 In the case of a claim on the second basis, one or each of the parties to the relationship must be shown to have provided domestic support and personal care to the other and that support and personal care must not have been provided for a fee or reward or on behalf of another person or organisation.533 NT. The applicant must have been a de facto partner of the deceased.534 Relevant indicators of such a relationship are set out in s 3A of the De Facto Relationships Act. Under s 3A(3) of that Act the partner’s gender is irrelevant. There is no minimum period during which the relationship must have been extant.

Qld. ‘Spouse’ is defined in s 5AA of the Qld Act as including a de facto partner as defined in the Acts Interpretation Act 1954 s 32DA. Under subs (5) of that section, gender is irrelevant. The relationship must have been of two years duration, ending on the deceased’s death535 unless the person was the deceased’s civil partner.536 SA. Application is made as a domestic partner of the deceased.537 To achieve this status, the applicant must have had a close personal relationship with the deceased for a period of three years ending on the deceased’s death or an aggregation of three years in the four years preceding the deceased’s death.538 If the court is satisfied that the persons concerned were domestic partners or were living together in a close personal relationship on the relevant date and the interests of justice require a declaration to be made, the court must make a declaration. The time requirement under s 11A does not apply to declarations made under s 11B(2) of the Family Relationships Act 1975 which also allows a declaration to be made where a child has been born to both of the domestic partners. Whether the Act extends to cases where one or both partners legally adopt a child is unclear. Tas. The applicant must have been in a significant relationship, as defined in the Relationships Act 2003 s 4, with the deceased at the date of the deceased’s death.539 In the Relationships Act 2003, a significant relationship applies to two adult persons. In other words, gender is irrelevant. [page 297] Vic. Application is made as a domestic partner of the deceased.540 A domestic partner is defined in s 3(1) of the Victorian Act as a registered domestic partner or an unregistered domestic partner. In both cases, gender is irrelevant.541

WA. The applicant applies as a de facto partner, the indicators of which are set out in the Interpretation Act 1984 s 13A.542 Under this Act the partner’s gender is irrelevant. Once eligibility is established, there is nothing unusual about these applications. However, provision for an applicant, claiming as a dependent, is limited to the needs of a person in that situation and normally does not extend to providing a house for the applicant.543 Table 4.15 digests cases involving applications by same-sex partners. [page 298]

[page 299]

[page 300]

Carers 4.70

Applications by carers are possible in New South Wales

and Victoria. In New South Wales eligibility depends on whether the applicant was: 1.

at any particular time, wholly or partly dependent on the deceased and, at that particular time or at any other time, a member of the household of which the deceased person was a member;544 or

2.

a person with whom the deceased was living in a close personal relationship at the deceased’s death.545

In both circumstances, the applicant must establish that there are factors which warrant the making of the application.546 In Corcoran v Bizannes547 factors warranting were found where the personal care and comfort was of a high order and lasted for a substantial period of time.548 If the applicant was living with the deceased person when acting as carer and was receiving free accommodation, the court is likely to find that the applicant was partly dependent on the deceased.549 Where the applicant is relying on the second basis of eligibility, viz living in a close personal relationship with the deceased, regard must be had to the definition of ‘close personal relationship’ in s 3 of the NSW Act. In particular, s 3(4) expressly negates the existence of a close personal relationship where one acts as a carer for fee or reward. The acceptance of a carer’s allowance from Centrelink was sufficient for the court to dismiss a claim in Grech v Walsh.550 In Skarica v Toska,551 an order was made in favour of an applicant who had been the deceased’s carer for at least five years and received a carer’s allowance from Centrelink for the last 12 weeks of the deceased’s life. The applicant and the deceased had been in a close personal relationship for 37 years and the case is distinguishable from Grech v Walsh where the applicant was a paid carer and nothing more.

[page 301] In Victoria, a carer may apply under s 90(h) of the Victorian Act if that carer is a registered caring partner which is defined in s 3(1) as a person who at the time of the deceased’s death was in a registered caring relationship with the deceased person within the meaning of the Relationships Act 2008. Section 3 of that Act defines a registered caring relationship as a relationship between two persons that is registered under s 10(3)(ab) of that Act. Under the legislation in force from 1998 to 2014 the court has held that the deceased had a responsibility to make provision for a carer in Carter v O’Brien552 and Unger v Sanchez.553

Foster children 4.71 Applications by foster children are permitted in New South Wales and Queensland.554 In the latter case, the applicant must be under 18 years of age. Applications would seem to be possible in Victoria,555 under s 90 ‘eligible person’, (d) or (g) or possibly (k) of the Victorian Act. However, s 91(4)(d) and (5)(b) of the Act would be relevant to such an application. General observations on applications by foster children were made in Hamilton v Moir556 and are summarised as follows: 1.

taking a child into care does not involve the same commitment as one would have towards one born naturally or adopted;

2.

whether there is a major difference in the obligation owed to a natural child compared with that owed to a foster child depends upon the facts of the individual case;

3.

a foster child brought up as a member of a family, in a secure

and loving environment, may have a greater claim on his, or her, foster parent’s bounty than a foster child who was not integrated into the family; 4.

relevant factors include:

the duration of the foster care relationship; the child’s age when the relationship commenced; whether the child was brought up as a permanent member of the family; the closeness of the relationship; whether the foster child/parent relationship was maintained subsequently; and the extent of support by the foster parent. Table 4.16 digests cases involving applications by foster children. [page 302]

[page 303]

[page 304]

Others 4.72

The Australian Capital Territory, New South Wales,

Queensland, South Australia and Victoria allow applications by persons not falling within any of the categories discussed above. In the Australian Capital Territory, a claim may be made by an eligible partner, as defined, who is the parent of a child of the deceased.557 In New South Wales, an ‘eligible’ person may apply. For a discussion of this term and reference to the further requirements for an application by an ‘eligible’ person, see 4.43. Successful applications have been made by the following: 1.

a fiancé;558

2.

a former same-sex de facto partner;559

3.

a daughter-in-law;560

4.

a divorced former daughter-in-law;561

5.

a step-grandchild;562

6.

a brother563 and a sister;564

7.

a niece565 and a nephew;566

8.

a granddaughter-in-law;567

9.

a former de facto wife;568 and

10. a person living in a close personal relationship but not in a de facto relationship with the deceased.569 [page 305] Unsuccessful applications were made by a daughter-in-law in Clinch v Swift,570 a former de facto wife in Hart v Van Son571 and a niece in Miller v Ryan.572 In Victoria, the 2014 amendment created several new categories

and details of these are set out in 1.6. In Victoria, successful applications have been made by: 1.

a widowed daughter-in-law;573

2.

a former daughter-in-law;574

3.

a child of the deceased’s former mistress;575

4.

a de facto wife’s child;576

5.

a sister;577

6.

a son-in-law;578

7.

a cousin;579 and

8.

a niece.580

These decisions were made under an amendment to the Victorian Administration and Probate Act which was in operation from 1998 to 2014. The current Act would allow similar applications to be made provided they complied with s 90(k) of the Act, viz if the applicant was a person who, at the time of the deceased’s death, was (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member. In Victoria, under legislation which gave the court power to determine the eligibility of an applicant, a claim was allowed by the child of the deceased’s de facto spouse where the deceased was not the child’s father in Whitehead v State Trustees.581 In Queensland a person under the age of 18 years and the parent of a surviving child of the deceased under the age of 18 years can apply. However, in both cases the applicant must have been wholly or substantially maintained or supported (otherwise than for full valuable

[page 306] consideration) by the deceased at the time of his or her death. For the meaning of these expressions, see 4.16. In South Australia, a claim may be made by a brother or sister of the deceased who satisfies the court that he or she cared for, or contributed to the maintenance of, the deceased during the deceased’s lifetime.582 _______________________ 1.

[2015] NSWCA 206 at [30]–[33] — this was a case where there were applications by children of an earlier marriage.

2.

[2002] NSWCA 47 at [63]. The other judges in this appeal agreed with the reasons of Hodgson JA. This point is also discussed by Macready M in McIntosh v Blatch [2002] NSWSC 403.

3.

The fact that the widow helped build up the estate tends to increase a widow’s moral claim on her husband’s bounty: Ahearn v Ahearn [1917] St R Qd 167; Re Richardson (1920) SALR 24 at 45; Cunningham v Cunningham [1936] GLR 419; Re Lipscomb [1963] NSWR 1509; King v White [1992] 2 VR 417 at 423. Such a view is not confined to widows: see 2.7.

4.

Cunningham v Cunningham [1936] GLR 419 at 420; Re Cole (1958) 12 DLR (2d) 406 at 415.

5.

Compare, for example, cases in Table 4.1 of widows’ applications with the following cases: (a) divorced spouses: Re Adams [1967] VR 881; Re Cutts [1969] VR 254; Churton v Christian (1988) 13 NSWLR 241; 12 Fam LR 386; and (b) marriage late in life: Re Richardson (1920) SALR 24; Parish v Parish [1924] NZLR 307; Cunningham v Cunningham [1936] GLR 419; Black v Owen [1936] GLR 168; Re Whitfield [1937] VLR 17; Whitington v Whitington [2009] SASC 142.

6.

Re Sinnott [1948] VLR 279 at 280; Re Scott [1950] VLR 102 at 105.

7.

Re Rush (1901) 20 NZLR 249; Re Russell (1907) 9 GLR 509; Re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 964; 12 GLR 753; Re Estall (1913) 16 GLR 185; E v E (1915) 34 NZLR 785 at 801 sub nom De Renzi v De Renzi (1915) 17 GLR 620 at 624; Re Newell (1932) 49 WN (NSW) 181 at 182; Re Crowe (1935) 35 SR (NSW) 547 at 549; Diack v Public Trustee [1941] GLR 215 at 216; Re Bevan [1954] NZLR 1108 at 1110; Re Shrimpton [1962] NZLR 1000 at 1006; Re Horton [1976] 1 NZLR 251 at 255; Easterbrook v Young (1977) 51 ALJR 456 at 462; Samsely v Barnes (1991) DFC 95-100 at 76,305;

Weston v Public Trustee (1996) ACL Rep 395 NSW 19; Cropley v Cropley [2002] NSWSC 349 at 356; Mason, Tuthill and Lennard, pp 73, 74. This view also exists in England: see J Unger, ‘The Inheritance Act and the Family’ (1943) 6 Mod LR 215 at 224. 8.

Bladwell v Davis [2004] NSWCA 170 at [12].

9.

Bladwell v Davis [2004] NSWCA 170 at [19]; and see Serle v Walsh [2006] QSC 377 at [53] where this statement was approved.

10.

Graham v Graham [2011] NSWSC 504 at [88]; Neil v Jacovou [2011] NSWSC 87 at [163].

11.

Allen v Manchester [1921] GLR 613 at 615. Not dissimilar remarks were made by Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69, 70 in the context of provision for a second spouse. See 4.11.

12.

Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 25 at 47. A life interest was held to be inadequate in Woolnough v Public Trustee [2005] TASSC 50 and Wilson v Knight [2009] NSWSC 230 although neither widow could be said to be of advanced years. The position is much the same with regard to second wives (see 4.11) and widowers (see 4.23).

13.

Szlazko v Travini [2004] NSWSC 610; Farr v Hardy [2008] NSWSC 996.

14.

The history of this development is well traced in Cameron v Vial [2009] NSWSC 79.

15.

Re Bongers [1969] 2 NSWR 93; Re Wilson [1973] 2 NZLR 359.

16.

Re Wilson [1973] 2 NZLR 359 at 362; Re Churchill [1978] 1 NZLR 744 at 753; Re Z [1979] 2 NZLR 495 at 506; Moore v Moore (CA(NSW), Hutley JA, CA154 of 1983, ED2873 of 1982, 16 May 1984, unreported).

17.

See 4.50.

18.

See 2.20–2.22.

19.

Re McInnes [1942] NZLR 547 at 553; Re Williamson [1954] NZLR 288 at 297; Re Thomas [1954] NZLR 302 at 304.

20.

Graham v Graham [2011] NSWSC 504 at [88].

21.

See 2.20 and 2.21.

22.

(SC(NSW), Powell J, No 4422/80, 18 May 1984, unreported, at p 11 of reasons). See also Wlodarczyk v Public Trustee NSW [2006] NSWSC 493. A contingency fund of $25,000 was ordered in a $730,000 estate in Langtry v Campbell (1991) ACL Rep 395 NSW 15.

23.

[2002] NSWCA 47 particularly at [65] per Hodgson JA and at [72] and [74] per Young CJ in Eq.

24.

This was accepted as correct in Clifford v Mayr [2010] NSWCA 6 at [142]–[144] and was adopted in Graham v Graham [2011] NSWSC 504 at [88].

25.

[2007] QSC 388.

26.

NT Act s 7(1)(a) and s 19A of the Interpretation Act (NT), inserted by s 38, Law

Reform (Gender, Sexuality and De Facto Relationships) Act 2003 (NT), which commenced on 17 March 2004. 27.

(1923) 19 Tas LR 21.

28.

Ibid at 23 and 25.

29.

Ibid at 25.

30.

Testator’s Family Maintenance Act 1900 (NZ) s 1; Testator’s Family Maintenance Act 1906 (NZ) s 3(1); Family Protection Act 1908 (NZ) s 33(1); Family Protection Act 1955 (NZ) s 3.

31.

[1927] NZLR 418 sub nom Re Gracia; Newman v Newton [1927] GLR 215.

32.

Winder v Public Trustee [1931] GLR 459; Re Collett; Collett v Public Trustee [1936] NZLR 9.

33.

[1950] GLR 296 at 299.

34.

[1960] NZLR 741.

35.

In Re De Feu [1964] VR 420 at 424, Sholl J described this omission as curious in the extreme.

36.

[1924] NZLR 673 at 687; [1924] GLR 169 at 178.

37.

See Bailey v Public Trustee [1960] NZLR 741 at 744.

38.

Re Liston (SC(Vic), Dean J, 11 November 1958, unreported). See Davern Wright, p 9.

39.

(1970) 91 WN (NSW) 858.

40.

[1964] VR 420.

41.

Ibid at 425.

42.

See 4.4. See also NSW Act s 60(2)(e).

43.

Tas Act s 9(4) (inserted by Act No 52 of 1957).

44.

(1993) 9 WAR 325.

45.

Being a circumstance existing at the date of the order (see 2.28) and being the factual resolution of one of the contingencies going to what was necessary at the date of death for the proper maintenance and support of the widow.

46.

See 4.4.

47.

[1931] GLR 459.

48.

[1936] NZLR 9.

49.

Intimations that there may be grounds to draw such a distinction appear in Bailey v Public Trustee [1960] NZLR 741 at 744 and Re De Feu [1964] VR 420 at 423.

50.

Toner v Lister [1919] GLR 498; Re Dingle (1921) 21 (NSW) 723 at 726; Re Knight [1939] GLR 673 at 677; Re Bradbury [1947] St R Qd 171; Re Scott [1950] VLR 102 at 107; Re Johnstone [1962] Tas SR 356 at 362.

51.

Re Roberts [1919] VLR 125; Re Kennedy [1920] VLR 513; Re Parr (1929) 30 SR (NSW) 10.

52.

Re O’Connor [1931] QWN 39; Re Vines [1939] St R Qd 68; Re Johnstone [1962] Tas SR 356; Re Clissold [1970] 2 NSWR 619.

53.

Re Roberts [1919] VLR 125; Re Kennedy [1920] VLR 513; Gerlach v Public Trustee (1998) ACL Rep 395 Tas 3.

54.

Paxton v Nicholson [1918] GLR 393; Re McKinney [1963] NSWR 993.

55.

Re Clissold [1970] 2 NSWR 619 at 622.

56.

Re Jennings [1940] GLR 546 (cohabitation of nine months); Re Johnstone [1962] Tas SR 356 (cohabitation of 20 days); Delacour v Waddington (1953) 89 CLR 117 (cohabitation of two years).

57.

Orders were refused in Re McGoun [1910] VLR 153; 31 ALT 193; 16 ALR 141; Geen v Geen (1913) 33 NZLR 81; Re Roberts [1919] VLR 125; Re Kennedy [1920] VLR 513; Re Phillips (1929) 29 SR (NSW) 19; Re Parr (1929) 30 SR (NSW) 10; Re Wollard [1953] SASR 173; Re Waters (1975) 11 SASR 315.

58.

Testator’s Family Maintenance Act 1939 (WA) s 2; Testator’s Family Maintenance Act 1918 (SA) (as amended by Act No 29 of 1943) s 2; Testator’s Family Maintenance Act 1914 (Qld) (as amended by 1952 Act) s 3(lB); Testator’s Family Maintenance Act 1912 (Tas) (as amended by Act No 52 of 1957) s 2; Vic Act (as amended by the Administration and Probate (Family Provision) Act 1962 (Vic)) s 91; ACT Act s 7(1)(a); NT Act s 7(1)(b), (2); NSW 1982 Act s 6(1).

59.

Re Mayo [1968] 2 NSWR 709 at 712; Churton v Christian (1988) 13 NSWLR 241 at 254; 12 Fam LR 386 at 394.

60.

Re Adams [1967] VR 881 at 888.

61.

Re Cutts [1969] VR 254 at 258; Churton v Christian (1988) 13 NSWLR 241 at 253; 12 Fam LR 386 at 394.

62.

Churton v Christian (1988) 13 NSWLR 241 at 253; 12 Fam LR 386 at 394.

63.

NSW Act ss 57(1)(d), 59(1); NT Act s 7(1)(b), (2); Qld Act ss 5AA, 40; SA Act s 6(b); Tas Act s 2; Vic Act s 91(1); WA Act s 7(1)(b).

64.

ACT Act s 7(1) ‘partner’ and s 7(9) definition of ‘partner’.

65.

NT Act s 7(7).

66.

Dijkhuijs v Barclay (1988) 13 NSWLR 639. If the relevant factors are absent, the application will be refused. See Johnston v Johnston (1987) 11 NSWLR 38. For recent cases where factors warranting were held to exist, see Simpson-Cook v Delaforce [2009] NSWSC 357; Milewski v Holben [2014] NSWSC 388. Generally, where there has been ‘a clean break’ as a result of a family law settlement and no continuing financial dependency, factors warranting will be difficult, if not impossible, to establish; see Mulcahy v Weldon [2001] NSWSC 474, upheld on appeal [2002] NSWCA 206.

67.

Vic Act s 90, ‘eligible person’, (e).

68.

For a case under the SA Act see Saskor v Farmers’ Co-operative Executors and Trustees (1983) 109 LSJS 117.

69.

Re Mayo [1968] 2 NSWR 709.

70.

Ibid at 712.

71.

(SC(Qld), Williams J, OS No 624/88, 7 November 1988, unreported).

72.

Re De Feu [1964] VR 420; Re Lack [1981] Qd R 112; Re Prakash [1981] Qd R 189; Dobell v Van Damme [1982] VR 425; Krause v Sinclair [1983] VR 73; Sarich v Erceg [1984] WAR 11; Alagiah v Crouch [2015] QSC 281.

73.

Dobell v Van Damme [1982] VR 425 at 426; Alagiah v Crouch [2015] QSC 281 at [43].

74.

Fox v Burvill (1955) 29 ALJ 414.

75.

Sarich v Erceg [1984] WAR 11 at 12.

76.

Re Adams [1967] VR 881; Re Cutts [1969] VR 254; Re Fullard [1982] Fam 42; [1981] 2 All ER 796; Churton v Christian (1988) 13 NSWLR 241; 12 Fam LR 386.

77.

[1967] VR 881 at 888.

78.

[1969] VR 254 at 256.

79.

Re Adams [1967] VR 881 at 888.

80.

Ibid.

81.

Ibid.

82.

Ibid; Churton v Christian (1988) 13 NSWLR 241; 12 Fam LR 386.

83.

Re Cutts [1969] VR 254 at 256.

84.

Re Cutts [1969] VR 254 at 256.

85.

Ibid; Re Fullard [1981] 2 All ER 796 at 799, and see s 3(1)(a) of the Inheritance (Provision for Family and Dependants) Act 1975 (UK).

86.

Re Cutts [1969] VR 254 at 256.

87.

Ibid.

88.

[1983] 1 Qd R 104.

89.

[1981] 2 All ER 796.

90.

See 10.3.

91.

(1985) 2 NSWLR 65.

92.

Luciano v Rosenblum (1985) 2 NSWLR 65 at 69, 70. This statement has been supported by the NSW Court of Appeal in O’Loughlin v O’Loughlin [2003] NSWCA 99 after considering a number of cases where reference to the statement had been made (see [20], [21]). It also applies to a de facto wife: see 4.22. It also has support in WA: see Nicholls v Zis [2001] WASC 301 at [14] and Tham v Public Trustee (WA) [2016] WASC 170 at [7]. A similar statement was made in Thompson v Thompson [2015] VSC 706 at [63].

93.

Neale v Neale [2015] NSWCA 206 at [33]–[34] per Bastin JA with whom Macfarlan and Gleeson JJA agreed.

94.

Re Bradbury [1947] St R Qd 171 at 173.

95.

Cunningham v Cunningham [1936] GLR 419 at 420; Re Cole (1958) 12 DLR (2d) 406 at 415.

96.

Cunningham v Cunningham [1936] GLR 419 at 420; Re Gilbert (1946) 46 SR (NSW) 318 at 322.

97.

Ta v Ta [2007] NSWSC 773 (marriage of 38 years’ duration).

98.

See 4.2 and following.

99.

In Sayer v Public Trustee NSW [2009] NSWSC 89 the children’s share was reduced from 100% to 28.7%.

100. Thompson v Thompson [2015] VSC 706 at [66]. 101. See 2.22. 102. Thompson v Thompson [2015] VSC 706 at [69]. 103. Re Calder [1950] GLR 465 at 467. 104. Thompson v Thompson [2015] VSC 706 at [69]. 105. Ibid; Re Cole (1958) 12 DLR (2d) 406; Goodman v Windeyer (1980) 54 ALJR 470. 106. Ahearn v Ahearn [1917] St R Qd 167; Diack v Public Trustee [1941] GLR 215 at 216; Re Bradbury [1947] St R Qd 171 at 173; Goodman v Windeyer (1980) 144 CLR 490; 54 ALJR 470. 107. Ahearn v Ahearn [1917] St R Qd 167. 108. Langtry v Campbell (1991) ACL Rep 395 NSW 15. 109. [2003] TASSC 99. 110. [2007] NSWSC 212. 111. [2008] NSWSC 860. 112. [2009] TASSC 8. 113. [2008] NSWSC 1069. 114. Milillo v Konnecke [2009] NSWCA 109. 115. ACT Act s 7(1)(b) definition of ‘partner’ in 7(9) and definition of ‘domestic partner’; NSW Act s 57 particularly definition (1)(b) and see the definition of ‘de facto relationship’ in s 21C(2) of the Interpretation Act 1987 (NSW): a de facto relationship may exist even if one of the parties is legally married to someone else or in a registered relationship with someone else; NT Act s 7(1)(a); De Facto Relationships Act (NT) ss 3(1), 3A; Qld Act s 5AA(2)(b) and (c)(i), definition of ‘spouse’; Acts Interpretation Act 1954 (Qld) s 32DA; SA Act s 4 definition of ‘domestic partner’, s 6(ba); Family Relationships Act 1975 (SA) ss 11A, 11B; Tas Act s

3A and definition of ‘spouse’ in s 1, and see s 4; Relationships Act 2003 (Tas); Vic Act s 91(1); WA Act s 7(1)(a); Interpretation Act 1984 (WA) s 13A. 116. Civil Unions Act 2012 (ACT); Relationships Register Act 2010 (NSW); Relationships Act 2003 (Tas); Relationships Act 2008 (Vic). 117. Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 at [119]. An appeal against this decision failed: see [2016] NSWCA 62. 118. Richardson v Armistead [2000] VSC 551 at [36]; Zahra v Francica [2009] NSWSC 1206 at [1]; Webb v Ryan [2012] VSC 377 at [22]; Ashton v Pratt (No 2) [2012] NSWSC 3 at [18]. 119. ACT Act s 7(9): ‘partner’ and ‘domestic partner’. 120. NSW Act s 3(1); Interpretation Act 1987 (NSW) s 21C(3). 121. Ibid. 122. Ibid. 123. Piras v Egan [2008] NSWCA 59 at [146]; Vaughan v Hoskovich [2010] NSWSC 706 at [51]–[53]. And see also Hayes v Marquis [2008] NSWCA 10; Dion v Rieser [2010] NSWSC 50. 124. NSW Act s 57(1)(e). 125. Popescu v Borun [2011] NSWSC 1532. 126. [2015] NSWSC 186. For the costs order see Sung v Malaxos (No 2) [2015] NSWSC 290. 127. [2014] NSWSC 991; [2015] NSWCA 286. 128. This section of the text has been contributed by the Northern Territory editor. 129. De Facto Relationships Act 1991 s 3A(1). 130. De Facto Relationships Act 1991 s 3A(2). 131. NT Act s 7(2)(a). 132. NT Act s 7(7)(b). 133. Qld Act s 40; Wolf v Deavin [2012] NSWSC 1315. 134. [1989] 1 Qd R 522. 135. Attorney-General v Boden [1912] 1 KB 539 at 561; Wade v Harding (1987) 11 NSWLR 551 at 554. 136. [1981] Fam 128 at 141; [1981] 2 All ER 29 at 38; see also Re Beaumont [1980] 1 Ch 444 at 453; [1980] 1 All ER 226 at 272. 137. [1912] 1 KB 539 at 561. 138. [1947] VLR 244. Discussion of the meaning of the term ‘connubial’ was said to be of assistance in Sale v Rudys [2002] 2 Qd R 423. 139. [1907] VLR 64 at 65.

(1976) 25 FLR 260 at 262, 263; 9 ALR 401. For further discussion of the meaning of 140. ‘connubial relationship’, see Court Forms, Precedents and Pleadings, Queensland, LexisNexis Butterworths, looseleaf at [32025]. 141. Qld Act s 5AA. 142. Acts Interpretation Act 1954 (Qld) s 32DA(1). 143. Acts Interpretation Act 1954 (Qld) s 32DA(2). 144. Acts Interpretation Act 1954 (Qld) s 32DA(3). 145. KQ v HAE [2006] QCA 489. 146. See 4.16. 147. See SA Act s 4 and Family Relationships Act 1975 (SA) s 11B(1). 148. Family Relationships Act 1975 (SA) ss 11A, 11B. 149. Family Relationships Act 1975 (SA) s 11A(b). ‘Domestic partner’ is defined in SA Act s 4 as a person declared as such under the Family Relationships Act 1975 (SA). 150. Family Relationships Act 1975 (SA) s 11B(3). For cases dealing with ‘domestic partners’, formerly referred to as ‘putative spouses’, see Lesiw v Commissioner of Succession Duties (1978) 20 SASR 481; Re Fagan (1980) 23 SASR 454; Sagovac v Public Trustee (1986) 132 LSJS 227; and Re Welsby and Parker (1991) 160 LSJS 492. 151. See Family Relationships Act 1975 (SA) s 12. 152. Relationships Act 2003 (Tas) s 4(3). 153. Relationships Act 2003 (Tas) s 4(4). 154. By the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 which was proclaimed on 29 October 2014 and applies to persons dying after 1 January 2015. 155. Vic Act s 90 ‘eligible person’, (a) ‘domestic partner’ and see s 3(1) for definition of ‘domestic partner’. 156. Vic Act s 3(1). 157. Vic Act s 3(1). 158. Forsyth v Sinclair [2010] VSCA 147. The trial judge in this case did not explicitly find that the applicant and the deceased were de facto partners but their relationship could have been so described. 159. See 4.12. 160. Re Harding [1983] WAR 266; Weston v Public Trustee (1986) 4 NSWLR 407; Puie v Public Trustee of Qld (1986) Q Conv Law and Practice 54-215 (a de facto widower); Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 (a de facto widower); Re Cobb [1989] 1 Qd R 552. Although the latter case does not specifically mention the de facto relationship, it was in fact the basis of the applicant’s claim. 161. [1983] WAR 266.

162. (1986) 4 NSWLR 407. 163. [1989] 1 Qd R 521. 164. See 4.16. 165. R v Creamer [1919] 1 KB 564; Nugent-Head v Jacob (Inspector of Taxes) [1948] AC 321 at 331. 166. (1949) 78 CLR 636 at 642. 167. Carruthers v Marshall [2001] NSWSC 665 but note the comments of both Hodgson JA and Young CJ in Eq when it went on appeal (see [2002] NSWCA 47 at [63] and [74] respectively) to the effect that the existence of a de jure marriage will often denote a formal commitment to a relationship that may be lacking in a de facto relationship, with the concomitant that such might affect the quantum of an order for provision; Re Nesbit (Qld Dist Ct, Wilson DCJ, D829/2001, 19 August 2003, unreported). Kirby P discussed this point in Golosky v Golosky (CA(NSW), CA40012/91, 5 October 1993, unreported). 168. Tweedy v Bradley [2000] NSWSC 1134; Carruthers v Marshall [2001] NSWSC 665; Marshall v Carruthers [2002] NSWCA 47 per Hodgson J; Re Nesbit (Qld Dist Ct, Wilson DCJ, D829/2001, 19 August 2003, unreported); Szlazko v Travini [2004] NSWSC 610. In the latter case provision was made for a motor vehicle as well. 169. (1985) 2 NSWLR 65. 170. Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182 at [31]. See Clifford v Mayr [2010] NSWCA 6 for this development. 171. (1996) ACL Rep 395 NSW 48. 172. Inostroza v Dura (1996) ACL Rep 395 NSW 48; Perger v Public Trustee WA (1997) ACL Rep 395 WA 5; Aranas v Berry [2002] NSWSC 355; Holdway v Arcuri Lawyers [No 2] [2007] QSC 378. The latter case was overturned on appeal ([2008] QCA 218; [2009] 2 Qd R 18) but on another point. A life interest in a two-bedroom unit plus a legacy of $98,000 (she received a legacy of $100,000 under the will) was ordered in the case of a four-year relationship in Sellers v Scrivener [2010] VSC 320. 173. See 3.4–3.8. 174. See 2.13. 175. [2009] VSC 250. 176. Re Sylvester [1941] Ch 87 at 89. 177. Re Clayton [1966] 1 WLR 969 at 972. 178. Re Schroeder [1972] QWN 10. 179. Re Brown [1972] VR 36. 180. McGrath v Queensland Trustees [1919] St R Qd 169; Re Larner (1938) 12 ALJ 249. 181. Re McElroy [1940] VLR 445.

182. Re Bourke [1968] 2 NSWR 452 at 455; followed in Hill v Wilson (1984) 114 LSJS 18 and in Re Christie (SC(Qld), Ryan J, OS No 112/85, 18 December 1985, unreported). See also Richards v Person [1982] 2 WWR 668; on appeal [1984] 1 WWR 573. 183. It was a gift to the wife by her uncle. 184. [2008] NSWSC 533 at [48]. 185. See 4.3. 186. Re Brown (1906) 26 NZLR 762. 187. Re McInnes [1942] NZLR 547 at 553; Re Williamson [1954] NZLR 288 at 297; Re Thomas [1954] NZLR 302 at 304. 188. (1906) 26 NZLR 762. 189. Bailey v Public Trustee [1960] NZLR 741 (CA). 190. See 4.4–4.6. 191. Tapp v Public Trustee [2009] TASSC 54. 192. ACT Act s 7(1)(b) and (9) definition of ‘partner’ and ‘domestic partner’; NSW Act s 57(1)(b): definition of ‘eligible person’ and see s 21C(2) of the Interpretation Act 1987 (NSW) and the observations in 4.12; NT Act s 7(7)(b); Qld Act s 40; SA Act s 4: definition of ‘domestic partner’ and s 6(ba); Tas Act 1912 s 2(1) and (3)–(5); Vic Act s 90: definition of ‘eligible person’; s 3 definition of ‘domestic partner’; WA Act s 7(1) (f). 193. See 4.12 and following. 194. (1993) DFC 95-100 195. [2006] NSWSC 328. 196. [2015] NSWSC 716. 197. [2015] NSWSC 1275. 198. Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 at [119]. This decision was upheld on appeal: see [2016] NSWCA 62. 199. Richardson v Armistead [2000] VSC 551 at [36]; Zahra v Francica [2009] NSWSC 1206 at [1]; Webb v Ryan [2012] VSC 377 at [22]; Ashton v Pratt (No 2) [2012] NSWSC 3 at [18]. 200. (1991) DFC 95-100 (CA). 201. See 4.3. 202. [2010] QSC 132 at [133]. 203. Re Sinnott [1948] VLR 279 at 280. 204. Bosch v Perpetual Trustee Co [1938] AC 463 at 482. 205. Re Vrint [1940] 3 All ER 470 at 475; Blore v Lang (1960) 94 CLR 124 at 134, 135. 206. Re Hodgson [1955] VR 481 at 485; Re Liston [1957] VR 50 at 52.

207. Laird v Laird (1903) 5 GLR 466 at 467; Re Harris (1918) 18 SR (NSW) 303 at 307; Re Williamson [1954] NZLR 288 at 301. 208. Re Hodgson [1955] VR 481 at 485; Re Liston [1957] VR 50 at 52. See 2.2. 209. (1915) 34 NZLR 951; 17 GLR 708. 210. (1925) 21 Tas LR 13. 211. [1929] QWN 15. 212. (1915) 34 NZLR 95; 17 GLR 708. 213. [1952] QWN 8. 214. (1968) 118 CLR 1. 215. [1970] VR 449. 216. For the position with regard to gifts to an applicant, see 2.15. 217. [1954] NZLR 235. 218. Re Buffalora [1956] NZLR 1017; see also Re Goodwin [1958] NZLR 320. 219. [1956] NZLR 1017 at 1020. 220. See 2.10. 221. Re Jennings [1940] GLR 546; MacEwan Shaw v Shaw [2003] VSC 318. 222. Re McCaffrey (1982) 29 SASR 582 at 590. 223. Moussa v Moussa [2006] NSWSC 352. 224. Re Shanahan [1957] NZLR 602. 225. Re Lawrence [1973] Qd R 201; V v G [1980] 2 NSWLR 366. For further reading on the subject generally, see J V Barry, ‘The Child en Ventre sa Mere’ (1941) 14 ALJ 351; see also Re Shrimpton [1962] NZLR 1000. 226. ACT Act s 7(8); NT Act s 7(8). 227. A child the subject of a parentage order under s 18 of the Surrogacy Act 2010 (NSW) will be an eligible person by reason of the effect of such an order (see s 39 of the Act) and by virtue of the definition of ‘family relationship’ in s 5A of the Property (Relationships) Act 1984 (NSW) and the definition of ‘related by family’ in s 21C(4) of the Interpretation Act 1987 (NSW). See also s 109A of the NSW Act in relation to the rights of a child of a surrogacy arrangement in the case of intestate estates. 228. Section 2(2) of the Tas Act was inserted by the Statute Law Revision Act 1934 (Tas) s 8(2), which provided that amendments made by the Act were to come into force as from 1 January 1936. 229. Assented to on 31 October 1936. 230. Testator’s Family Maintenance Act Amendment Act 1943 (Qld) s 2, assented to on 8 April 1943; Testator’s Family Maintenance Act 1943 (SA) s 3, assented to on 16 December 1943.

231. ACT Act s 7(5); Administration and Probate (Family Provision) Act 1962 (Vic) s 5; NT Act s 7(5); WA Act s 4. 232. Children (Equality of Status) Act 1976 (NSW) s 6 (commenced 1 July 1977). An exnuptial child was held not entitled to apply under the 1916 Act before the Children (Equality of Status) Act 1976 (Re Turnbull [1975] 2 NSWLR 360) but entitled to apply after the 1976 Act (V v G [1980] 2 NSWLR 366). 233. Parentage Act 2004 (ACT) s 38; Status of Children Act 1996 (NSW) s 5; Status of Children Act 1978 (NT) s 4; Status of Children Act 1978 (Qld) s 3; Family Relationships Act 1975 (SA) s 6; Status of Children Act 1974 (Tas) s 3; Status of Children Act 1974 (Vic) s 3. 234. WA Act s 4. 235. Parentage Act 2004 (ACT) s 15; Status of Children Act 1996 (NSW) s 21; Status of Children Act 1978 (NT) s 11; Status of Children Act 1978 (Qld) s 10; Family Relationships Act 1975 (SA) s 9; Status of Children Act 1974 (Tas) s 10; Status of Children Act 1974 (Vic) s 10. 236. Parentage Act 2004 (ACT) s 15; Status of Children Act 1996 (NSW) s 21; Status of Children Act 1978 (NT) s 12; Status of Children Act 1974 (Tas) s 10. 237. Parentage Act 2004 (ACT) s 9; Status of Children Act 1996 (NSW) s 13; Status of Children Act 1978 (NT) s 9A; Status of Children Act 1978 (Qld) s 18D; Family Relationships Act 1978 (SA) s 7; Status of Children Act 1974 (Tas) s 7; Status of Children Act 1974 (Vic) s 7. 238. Re J (1964) 7 FLR 67 at 69. 239. Qld Act s 41(9). 240. Family Relationships Act 1975 (SA) s 12. For an interesting decision in relation to proof of paternity, see Re FB (1989) 147 LSJS 57. See also P v T (1980) 23 SASR 289; W v C (1981) 28 SASR 130; Re Y (1984) 36 SASR 584; S v M (1984) 36 SASR 316. 241. Re Sinodinos (1994) 63 SASR 42. 242. Ibid. 243. Parentage Act 2004 (ACT) s 34; Status of Children Act 1996 (NSW) s 26; Status of Children Act 1978 (NT) s 13; Supreme Court Rules r 155; Supreme Court Act 1935 s 72(1)(ea); District Court Act 1991 (SA) s 51(1)(da); Status of Children Act 1978 (Qld) s 11; Status of Children Act 1974 (Tas) s 13. 244. [2013] WASCA 231. 245. [2002] WASC 96. 246. Re Riley [1996] 1 Qd R 209; Govers v Luff (1997) ACL Rep 205 NSW 47. 247. Parentage Act 2004 (ACT) s 34; Status of Children Act 1996 (NSW) s 26; Status of Children Act 1978 (NT) s 13; Status of Children Act 1978 (Qld) s 11; Status of Children Act 1974 (Tas) s 13.

248. Williams v Smith [2006] ACTSC 65. 249. (1997) ACL Rep 205 NSW 47. 250. (WA, 1997, Australian Lawyer, Vol 32, No 3, p 27, unreported). 251. Re Cook (SC(Qld), Ryan J, OS No 1150/91, 11 September 1992, unreported). 252. Parentage Act 2004 (ACT) s 35; Status of Children Act 1996 (NSW) s 29; Status of Children Act 1978 (NT) s 13; Status of Children Act 1978 (Qld) s 11; Status of Children Act 1974 (Tas) s 14. 253. Piggott v Harrex [2000] TASSC 72 per Slicer J. 254. Re Raymond (1912) 14 GLR 560; Re Sinnott [1948] VLR 279. 255. Re Bleasel (1906) 25 NZLR 974; 8 GLR 743; Lean v Tipping (No 2) [1917] GLR 355; Re Turner [1943] St R Qd 27. 256. Re Raymond (1912) 14 GLR 560. 257. See 2.21. 258. Re Bodman [1972] Qd R 281 at 284. 259. (1975) 11 SASR 276 at 285; applied in Re Vitch (1988) 147 LSJS 143 at 148. 260. Re Anderson (SC(Qld) Civil Div, Kelly J, OS No 414/81, 30 May 1984, unreported); Re McLean (SC(Qld), Derrington J, OS No 825/85, 23 July 1987, unreported). 261. Wilkinson v Wilkinson (1904) 24 NZLR 156; Re Bleasel (1906) 25 NZLR 974; Re Raymond (1912) 14 GLR 560; Lean v Tipping (No 2) [1917] GLR 355; Re Hall [1941] QWN 3; Re Turner [1943] St R Qd 27; Re Sinnott [1948] VLR 279. 262. Glasgow v Glasgow (1911) 13 GLR 647; Prosser v Twiss [1970] VR 225. 263. Collings v Vakas [2006] NSWSC 393. 264. Re Hallahan (1918) 18 SR (NSW) 138. 265. Dugac v Dugac [2012] NSWSC 192. 266. See 2.10. 267. [1967] WAR 79. 268. Re Taylor [1968] Qd R 385; Stokes v Collins & Lewis [2014] WASC 182. 269. Rutter v McCusker [2008] NSWSC 269. 270. Davis v Davis [2014] NSWSC 234. 271. Lawrence v Campbell [2007] NSWSC 126; Kay v Archbold [2008] NSWSC 254. 272. Netter v Watts [2008] NSWSC 1102; West v Mann [2013] NSWSC 1852. 273. Evans v Perpetual [2012] NSWSC 139 at [28]. 274. Re Green (1911) 13 GLR 477; Sinclair v Sinclair [1917] NZLR 144; Re Sharpe [1928] St R Qd 102; Re F [1940] St R Qd 290; Re Hodgson [1955] VLR 481; Re Foote (SC(Qld), Macrossan J, OS No 460/79, 25 March 1980, unreported); Bakranich v Public Trustee (1991) ACL

Rep 395 WA 4; Halton v Clayton [2005] NSWSC 1269; McCormick v O’Brien [2007] NSWSC 131; Carey v Robson [2009] NSWSC 1142, affirmed on appeal [2010] NSWCA 351; Harrisson v Skinner [2013] NSWSC 786; Friend v Brien [2014] NSWSC 613; McCleary v Metlik Investments [2015] NSWSC 1043; Chapman v Ingold [2015] NSWSC 1604. 275. Blore v Lang (1960) 104 CLR 124. 276. Re Cameron (1905) 8 GLR 428; Re Hatte [1943] St R Qd 1; Re Osborne [1928] St R Qd 129; Re Wilson [1957] St R Qd 577; Re Anderson (1975) 11 SASR 276; Cooper v Dungan (1976) 50 ALJR 539; Little v Angus [1981] 1 NZLR 126; Re McCaffrey (1982) 29 SASR 582. 277. Cooper v Dungan (1976) 50 ALJR 539 at 540; Re McCaffrey (1982) 29 SASR 582. 278. Re Salathiel [1971] QWN 18; Re Yarrell [1956] NZLR 739. 279. Colquhoun v Public Trustee (1912) 31 NZLR 1139. 280. Blackburn v Mapp [1917] NZLR 565; [1917] GLR 358. 281. Hart v Hart (1915) 17 GLR 393. 282. Parish v Valentine [1916] NZLR 455. 283. [1981] 1 NZLR 126 at 128. 284. [1972] Qd R 281 at 284. 285. (1960) 104 CLR 124. 286. [1971] QWN 18. 287. (1976) 50 ALJ 539. 288. [1981] 1 NZLR 126. 289. [1985] 2 NZLR 88. 290. Cooper v Dungan (1976) 50 ALJR 539 at 543; see also Re Leonard [1985] 2 NZLR 88. 291. Re Salathiel [1971] QWN 18. 292. Blore v Lang (1960) 104 CLR 124 at 135. 293. Dobb v Hacket (1993) 10 WAR 532 at 534; Christie v Manera [2006] WASC 287. 294. (1960) 104 CLR 124 at 135. 295. For example, the husband may be struck by misfortune or ill health or there might be severe illness in the family (see cases referred to earlier). 296. Hunter v Hunter (1987) 8 NSWLR 573. 297. Goodman v Windeyer (1980) 144 CLR 490 at 498; 54 ALJR 470 at 474; Bondelmonte v Blanckensee [1989] WAR 305 at 310; Pope v Christie (1998) ACL Rep 395 NSW 22. 298. See 4.32. 299. See 2.18. 300. Goodman v Windeyer (1980) 144 CLR 490 at 498; 54 ALJR 470 at 474.

301. Finlay v Mack [2001] NSWSC 443; Shearer v Public Trustee [1998] NSWSC 1007; McCarthy v Murphy [2002] NSWSC 494; Fellows v Paterson [2002] NSWSC 190; Bladwell v Davis [2004] NSWCA 170; Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; McGrath v Eves [2005] NSWSC 1006; Boniecki v Brown [2006] NSWSC 306; Stewart v Antoniolli [2006] NSWSC 389; Smith v Taylor [2006] NSWSC 162; Sprowles v Bertoldo [2007] NSWSC 1255; Bolger v McDermott [2013] NSWSC 919 at [364]. 302. Re Salathiel [1971] QWN 18; Cooper v Dungan (1976) 50 ALJR 539; Re Little (1995) 16 QL Rep 39; Carrick v Public Trustee (NSW) [2002] NSWSC 1000. 303. Re Buckland [1966] VR 404; Re Buckland (No 2) [1967] VR 3; Ogden v Green [2003] NSWCA 352; Mayfield v Lloyd-Williams [2005] NSWCA 189. 304. Boniecki v Brown [2006] NSWSC 306. 305. Thompson v Mulligan [2009] NSWSC 399. 306. [2007] NSWSC 1255. 307. Re Rowe [1964] QWN 46; Re Buckland (No 2) [1967] VR 3 at 5; Hughes v NTE&A (1979) 143 CLR 134 at 147; 53 ALJR 249 at 253. 308. Re Sinnott [1948] VLR 279 at 280. 309. Munt v Findlay (1905) 8 GLR 197; Re Allardice; Allardice v Allardice (1910) 29 NZLR 959; 12 GLR 753; on appeal [1911] AC 730; Re TFM Acts (1916) 12 Tas LR 11 (this decision was criticised by Fullagar J in Coates v NTE&A (1956) 95 CLR 494 at 520); Re Fuller (1917) 17 SR (NSW) 348; Re Chapman [1918] St R Qd 226; Re McElroy [1940] VLR 445; Re Berry (1957) 33 NZLJ 277; Scales’ case (1962) 107 CLR 9; 36 ALJR 1; Re Baker [1962] NZLR 758; Re Young [1965] NZLR 294; Re Anderson (1975) 11 SASR 276; Re Foote (SC(Qld), Macrossan J, OS No 460/79, 25 March 1980, unreported); Kerr v Kerr (1991) ACL Rep 395 WA 7; Langford v Cleary [1998] TASSC 37; Mangraviti v Jackson [1999] NSWSC 804; Scalone v Scalone [2000] NSWSC 1028; Caska v Caska [1999] NSWSC 289; Stern v Engel [2001] NSWSC 1025; Vigolo v Bostin (2002) 27 WAR 121, confirmed on appeal by the High Court (2005) 221 CLR 191; Higgins v Higgins [2005] Qd R 502; [2005] QSC 110 (a summary dismissal case); Edgar v Public Trustee NT [2011] NTSC 5; Ansett v Moss [2007] VSC 92; Rutter v McCusker [2008] NSWSC 269; Cassaniti v Cassaniti [2008] NSWSC 258; Norris v Public Trustee NSW [2008] NSWSC 179; Laursen v Laursen [2009] 2 Qd R 148; [2009] QSC 30; Butcher v Craig [2009] WASC 164; Glynne v NSW Trustee & Guardian; Dodds v Dodds [2013] NSWSC 1933; Daniels v Hall [2014] WASC 152; Bates v Cooke [2014] NSWSC 1259 (affirmed on appeal [2015] NSWCA 278); Henderson v Lees [2014] NSWSC 1948; How v How [2015] TASSC 4; Warriner v Warriner [2015] VSC 314; Zugan v Zugan [2015] NSWSC 1821. 310. [1948] VLR 279 at 280; cited with approval, inter alia, in Re Buckland (No 2) [1967] VR 3 at 5 and in Hughes v NTE&A (1979) 143 CLR 134 at 147; 53 ALJR 249 at 253. 311. [1990] VR 527 at 536. 312. Stott v Cook (1960) 33 ALJR 447 at 448; Scales’ case (1962) 107 CLR 9 at 19, 24; Re Buckland (No 2) [1967] VR 3; Re Adams [1967] VR 881; Hughes v NTE&A (1979) 143 CLR 134 at 147; 53 ALJR 249 at 253; Anderson v Teboneras [1990] VR 527 at 538.

313. Niehoff v Niehoff [1995] 2 VR 356 at 359, 367, 368. 314. Collicoat v McMillan [1999] 3 VR 803 at 821. 315. See 2.3. 316. (1994) 13 WAR 229 at 235. 317. Hunter v Hunter (1987) 8 NSWLR 573 at 580. 318. Blair v Blair [2004] VSCA 149; (2004) 10 VR 69 at 78. 319. Dawson v Joyner [2011] QSC 385 at [66]. 320. As to the view of courts to rules of general application, see 2.23. 321. Anderson v Teboneras [1990] VR 527 at 536. 322. Kleinig v Neal (1980) 8 Fam LR 392 at 410–12; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 542–5; Public Trustee v Waterhouse (CA(NSW), Reynolds, Hutley and Mahoney JJA, No 178/82, 30 September 1982, unreported). 323. Gorton v Parks (1989) 17 NSWLR 1; Hawkins v Prestage [1989] 1 WAR 37. 324. Blair v Blair [2004] VSCA 149; (2004) 10 VR 69 at 79. 325. Hyland v Burbidge [2000] NSWSC 12. 326. Lo Surdo v Public Trustee [2005] NSWSC 1186. 327. Hughes v NTE&A (1979) 143 CLR 134 at 147; 53 ALJR 249 at 253. 328. Anderson v Teboneras [1990] VR 527. 329. Mudford v Mudford [1947] NZLR 837 at 840; McCosker v McCosker (1957) 97 CLR 566; Re Rowe [1964] QWN 46; Re Hokin [1959] VR 711; Re Cooper [1970] 2 NSWR 182; Kleinig v Neal (1980) 8 Fam LR 392; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Crook v Elder’s Trustee (1986) 132 LSJS 121; Anderson v Teboneras [1990] VR 527; see also Goodman v Windeyer (1980) 144 CLR 490; 54 ALJR 470 at 473; Hawkins v Prestage [1989] 1 WAR 37 at 45; O’Donnell v Gillespie [2010] QSC 22; Kastrounis v Founderadakis [2012] NSWSC 264; Seeto v Seeto [2013] NSWSC 1232. It is equally relevant to a claim by an adult daughter: see Re McCreedy [1938] St R Qd 293 at 296; Re Campbell [1951] GLR 287. 330. Re Rowe [1964] QWN 46 (financial support of mother after the testator deserted the family); see also Goodman v Windeyer (1980) 144 CLR 490; 54 ALJR 470 at 473. 331. Munt v Findlay (1905) 8 GLR 197; Re Bleasel (1906) 25 NZLR 974; 8 GLR 743; Glasgow v Glasgow (1911) 13 GLR 647; Re Fletcher [1921] NZLR 649; [1921] GLR 429; Re McNamara (1938) 55 WN NSW 180; Mudford v Mudford [1947] NZLR 837; Re Anderson (1975) 11 SASR 276; Lowe v Lowe [2014] NSWSC 371; Pang v Fong [2014] NSWSC 1425; Brand v Brand [2015] NSWSC 52; Ciric v Ciric [2015] NSWSC 313. 332. Lean v Tipping (No 2) [1917] GLR 355. 333. Sinclair v Sinclair [1917] NZLR 144; Lean v Tipping (No 2) [1917] GLR 355. 334. Lean v Tipping (No 2) [1917] GLR 355; Re Jolliffe [1929] St R Qd 189; Re Hokin [1959] VR 711; Hughes v NTE&A (1979) 143 CLR 134; 53 ALJR 249; Re Lawson [1987] 1 NZLR 486;

Kusumo v Kusumo [2014] NSWSC 1704. 335. Re Adams [1967] VR 881 at 886–7; Ormsby v Ormsby (1991) ACL Rep 395 NSW 13. 336. Courthope v Courthope (1939) 41 WALR 66; Re Christie [1979] 1 Ch 168; Leyden v McVeigh [2009] VSC 164. 337. Hughes v NTE&A (1979) 143 CLR 134 at 148; 53 ALJR 249 at 254. 338. Daniel v Van Zwol [2015] SASFC 38. 339. Re Wilson (1992) NZLJ 375; Re Dobson [1991] NZFLR 403. 340. See Daniel v Van Zwol [2015] SASFC 38. 341. See cases 1, 5, 10 and 11 in Table 4.3. 342. See 3.4–3.7. 343. Goodman v Windeyer (1980) 144 CLR 490 at 498 per Gibbs J. See also Re Raymond (1912) 14 GLR 560. 344. See 4.32. 345. Ray v Moncrieff [1917] NZLR 234; [1917] GLR 72. 346. Re Fletcher [1921] NZLR 649; [1921] GLR 429; Re Bell [1929] GLR 320 at 322. 347. [1921] NZLR 649; [1921] GLR 429. 348. Re Hatte [1943] St R Qd 1 at 26. This passage was cited by Gibbs J in Hughes v NTE&A (1979) 143 CLR 134 at 148; 53 ALJR 249 at 254. 349. Sinclair v Sinclair [1917] NZLR 144; Re Fletcher [1921] NZLR 649; [1921] GLR 429; Re Hatte [1943] St R Qd 1; McCosker v McCosker (1957) 97 CLR 566; Stott v Cook (1960) 33 ALJR 447; Hughes v NTE&A (1979) 143 CLR 134; 53 ALJR 249; Hunter v Hunter (1987) 8 NSWLR 573; Re Raineri (1991) 14 QL 82. 350. Hughes v NTE&A (1979) 43 CLR 134 at 148–9; 53 ALJR 249 at 254 per Gibbs J; Mason and Aickin JJ agreed with Gibbs J. 351. [1997] 2 VR 359. 352. (1987) 8 NSWLR 573. 353. ACT Act s 7(1)(d); NSW Act ss 57(1)(e), 59(1)(b) and see 4.43; NT Act s 7(1)(d); Qld Act s 4; SA Act s 6(g); Tas Act s 2; Vic Act s 91; WA Act s 7(1)(ea) and (eb). 354. Qld Act s 40; Tas Act s 2. 355. McKenzie v Topp [2004] VSC 90; James v Day [2004] VSC 290; Keets v Marks [2005] VSC 172; Robertson v Koska [2010] VSC 143. A similar view can be found in Freeman v Jacques [2005] QCA 423 at [40]; [2006] 1 Qd R 318 at 324. 356. [1967] Qd R 124. 357. Ibid at 126. 358. [1968] Qd R 221; Revell v Revell [2016] NSWSC 947 at [5].

359. [1985] 2 Qd R 335. 360. [1988] 1 Qd R 23. 361. (1985) 59 ALJR 669 at 674. 362. Its decision was subsequently applied in Re Oakley [1986] 2 Qd R 269. 363. Re Burt [1988] 1 Qd R 23 at 29. 364. Re Burt [1988] 1 Qd R 23 at 23 per Andrews CJ and at 27 per MacPherson J. 365. [1989] 2 Qd R 236. 366. Justice and Other Legislation (Miscellaneous Provisions) Act 1997 (Qld) s 2(5). 367. Re Taylor [1989] 1 Qd R 205. 368. Section 89 of the Succession Act 1867–1977 (Qld) as amended by the Testator’s Family Maintenance Act Amendment Act 1943 (Qld). 369. [1989] 1 Qd R 638; (1988) 12 Fam LR 787. Re Marstella was reconsidered by the Court of Appeal in Re Monckton [1996] 2 Qd R 174 but no change was made. 370. Justice and Other Legislation (Miscellaneous Provisions) Act 1997 (Qld) s 79. 371. [2000] 2 Qd R 322. 372. [1988] 1 Qd R 23. 373. [1989] 1 Qd R 638. 374. [1996] 2 Qd R 174. 375. Qld Act s 40: see definitions of ‘child’ and ‘dependant’. 376. See 4.38. 377. Justice and Related Legislation (Miscellaneous Amendments) Act 2015 (Tas). 378. The Act commenced on 13 October 2015. 379. Popple v Rowe [1998] 1 VR 651. 380. Coombes v Ward [2004] VSCA 51. 381. Vic Act s 90, ‘eligible person’, (c) if under 18 years or (f). 382. WA Act s 7(1)(ea); ACT Act s 7(2); NT Act s 7(2). See s 7(7) also (in each Act) for the statutory meaning of the word ‘maintained’. 383. WA Act s 7(1)(eb). 384. Barrett v Thurling [1984] 2 NSWLR 683. 385. They do not have to be persons who were maintained by the deceased at the date of his or her death: see Re Fulop (1987) 8 NSWLR 679; Churton v Christian (1988) 13 NSWLR 241; 12 Fam LR 386. 386. For the meaning of ‘dependency’ see 4.16. General observations on claims by a dependent person living in the same household as the deceased may be found in

Page v Page [2016] NSWSC 1218 and 1323. 387. NSW Act s 57(1)(e)(i) and (ii); Petrohilos v Hunter (1991) 25 NSWLR 343. 388. NSW Act s 59(1). 389. McKenzie v Baddeley (1992) ACL Rep 395 NSW 3. 390. SA Act s 6(g). 391. Re Lockwood [1960] Tas SR 46; Hinchen v Public Trustee [1978] Tas SR (NC11) 221. 392. Re Trackson [1967] Qd R 124 at 126. These ordinary principles are set out, for example, in decisions of the High Court such as Hughes v NTE&A (1979) 143 CLR 134; 53 ALJR 249 at 253 and Singer v Berghouse (1994) 181 CLR 201 at 210; 68 ALJR 653 at 657; 18 Fam LR 94 at 100. 393. Graziani v Graziani (NSW, Eq 2678 of 1985, Cohen J, 20 February 1987, unreported). 394. McKenzie v Topp [2004] VSC 90 at [56], [57]. 395. Robertson v Koska [2010] VSC 143. The approach taken in James v Day [2004] VSC 290 and Keets v Marks [2005] VSC 172, that the natural parent’s contribution to the joint assets alone was sufficient to justify a finding that the deceased had a responsibility to provide for the applicant, was rejected in Robertson v Koska. 396. Re Wood (1982) Law Soc Gaz 774; Re Callaghan [1984] 3 All ER 790 at 794; Re Fulop (1987) 8 NSWLR 679 at 683; McKenzie v Topp [2004] VSC 90. 397. [1960] Tas SR 46. This decision was considered in Freeman v Jacques [2005] QSC 200. 398. Dehnert v Perpetual Executors and Trustees (1954) 91 CLR 177; Re Theaker [1955] QWN 51; Re Yarrell [1956] NZLR 739. 399. (1954) 91 CLR 177. 400. Adoption of Children Act 1928 (Vic) s 7. 401. Dehnert v Perpetual Executors and Trustees (1954) 91 CLR 177 at 191 per Kitto J. 402. Re Buffalora [1956] NZLR 1017; Re Ward [1964] NZLR 929; Re S [1975] VR 47; Re Swanson [1976] 2 NZLR 27; Re Lawson [1987] 1 NZLR 486. 403. Re CK [1950] GLR 296; Re Wood [1955] NZLR 554; Re Nielsen [1968] Qd R 221; Reeves v Berge Phillips (1982) 7 Fam LR 940. 404. Coates v Public Trustee [2007] NSWSC 647. This case was decided under the Family Provision Act 1982 (NSW). The relevant sections in the current Act are ss 57(1)(e) and 59(1)(b). For a recent successful application by an adopted son in NSW see Matthews v Wear [2011] NSWSC 1145. 405. See Coombes v Ward (2002) ACL Rep 395 Vic 4. 406. Vic Act s 90, ‘eligible person’, (f). 407. Vic Act s 90, ‘eligible person’, (f). 408. Adoption Act 1993 (ACT) s 53; Adoption of Children Act 1965 (NSW) s 45; Adoption

of Children Act 1964 (NT) s 39; Adoption of Children Act 1964 (Qld) s 35; Adoption Act 1988 (SA) s 21; Adoption Act 1988 (Tas) s 59; Adoption Act 1984 (Vic) s 66; Adoption of Children Act 1896 (WA) s 14. 409. In South Australia, residence must be for a period of not less than 12 months. In the Northern Territory, the condition of 12 months’ residence was repealed in 1986 (Adoption of Children Amendment Act 1986 (NT)). Notwithstanding the warning that it may be dangerous to try to define what is meant by ‘residence’ (Re Adoption Application [1952] 1 Ch 16 at 25), it has been defined in Australia as a permanent place of abode (see Re an Infant [1981] Qd R 225). 410. Adoption Act 1993 (ACT) s 57L(2)(c); Adoption Act 2000 (NSW) s 95; Adoption of Children Act 1964 (NT) s 49; Adoption of Children Act 1964 (Qld) s 38(2); and see Adoption of Children Act Amendment Act 1990 (Qld) s 14; Adoption Act 1988 (Tas) s 60(2)(d); Adoption Act 1984 (Vic) s 42(2); Adoption of Children Act 1896 (WA) s 15(2). 411. Re McKenzie (1951) 41 WN (NSW) 293; Re Pratt (1963) 80 WN (NSW) 1416; [1964] NSWR 105. 412. [1975] 1 NZLR 444. 413. [1969] NZLR 741. 414. Re O [1975] 1 NZLR 444 at 447. 415. [1990] 2 WLR 161. 416. See 2.27. 417. Re Ward [1964] NZLR 929; Re Theaker [1955] QWN 51. 418. [1975] VR 47 at 55. 419. [2011] NSWSC 1145. 420. [2012] NSWSC 139. 421. [2012] NSWSC 748. 422. [2014] SASC 42. 423. (SC(NSW) Eq Div, Powell J, Nos 4431/88 and 4432/88, 21 March 1991 and 15 April 1991, unreported). 424. [2001] NSWSC 668. 425. [2002] NSWSC 248. 426. Carroll v Cowburn [2002] NSWSC 248 at [12]. 427. That is, an order limiting payments to be spread out over time, a life interest in realty or a protective trust. 428. Carroll v Cowburn [2002] NSWSC 248. 429. Marshall v Public Trustee [2006] NSWSC 402.

430. Sangster v Sangster [2009] NSWSC 695. 431. Goldberg v Landerer [2010] NSWSC 1431; Rodgers v Tasmanian Perpetual Trustees Ltd [2013] TASSC 73. 432. Fricano v Lagana [2009] NSWSC 840; Gabriele v Gabriele [2015] VSC 115. 433. Borebor v Keane [2013] VSC 35. 434. Mitrovic v Perpetual Trustee Co [1999] NSWSC 900. 435. Alquist v ANZ Executors & Trustees Co [2004] NSWSC 1116; Stares v Public Trustee [2005] NSWSC 37; Hardiman-Burt v Gordon [2008] NSWSC 395; Pizzino v Pizzino [2010] QSC 35; Kusumo v Kusumo [2014] NSWSC 1704. 436. Re Duff (1948) SR (NSW) 510; Re Wood [1955] NZLR 544; Re Pfrimmer (1968) 69 DLR (2d) 71; Diggins v Lord (1993) ACL Rep 395 WA 5. 437. See 7.2. 438. Pandelakis v Chintis [2007] NSWSC 1023. 439. Re Koehler [1920] NZLR 257; Public Trustee v Willis [1924] GLR 238; Curtis v Adams [1933] NZLR 385; Re Whiting [1938] SASR 188; Re J [1947] ALR 496; Re Symmons [1948] 2 ALR 283; Re Watkins [1949] 1 All ER 695. 440. Re Williams [1933] SASR 107; McCormick v Gleeson [1934] GLR 158; Re McNamara (1938) 55 WN (NSW) 180. 441. (1948) SR (NSW) 510 at 512, 513, which was cited with approval in Inostroza v Dura (1996) ACL Rep 395 NSW 48. 442. Similar views were expressed in Re Symmons [1948] 2 ALR 283 at 284 and Re E [1966] 2 All ER 44 at 48. 443. (1959) 33 ALJ 240. 444. Provision for extra comforts was made in the English case of Re Pringle [1956] CLY 9248. 445. Re P [1973] 2 NZLR 734 (quantum of $4 per week assessed); Re Wood (1982) Law Soc Gaz 774; Penty v Mott (1984) 6 DLR (4th) 444. In Re Baker [1962] NZLR 758 it would appear that some provision was made for a son who was intellectually disabled, but the report is unclear on this point. 446. Re Betar (SC(NSW) Eq Div, Sugerman J, 9 April 1948, unreported) (referred to in Re Duff (1948) 48 SR (NSW) 510 at 512, 514). 447. [2007] NSWSC 151 at [60]. This decision was followed in Taylor v Farrugia [2009] NSWSC 801. 448. [2007] QSC 384 at [50]. 449. (NSW, 31 July 1995, unreported). 450. (CA(NSW), CA 40372/95, unreported). 451. Re McGookin [1955] NZLR 511; Higgs v Perpetual Trustees [1943] NZLR 290.

452. [2007] QSC 384. 453. [2013] WASC 379. 454. (SC(Qld), Weld M, OS No 651/83, 26 October 1984, unreported). 455. [1955] QWN 70. 456. Higgs v Perpetual Trustees [1943] NZLR 290. 457. Ibid. 458. See 7.28. 459. See, generally, cases digested in Table 4.14. 460. Ibid. 461. Weston v Public Trustee (1996) ACL Rep 395 NSW 19. 462. Inostroza v Dura (1996) ACL Rep NSW 48 ($120,000 on trust out of a $460,000 estate); Wrchowsky v Perpetual Trustees WA Ltd (1997) ACL Rep 395 WA 15 ($25,000 legacy plus $100,000 on trust out of a $213,863 estate); Govers v Luff (2000) ACL Rep 395 NSW 44 ($100,000 on trust out of a $375,000 estate); Richard v AXA Trustees Ltd (2000) ACL Rep 395 Vic 17 ($650,000 on trust out of a $1.3m estate). 463. (1999) ACL Rep 395 NSW 68. 464. (2000) ACL Rep 395 NSW 15. 465. [2013] VSC 462. 466. (1992) ACL Rep 395 Vic 18. 467. (1996) ACL Rep 395 NSW 48. 468. (2002) 3(5) Medicine Today 16–22. 469. See generally 2.32. 470. J Carr, ‘Long Term Outcome for People with Down’s Syndrome’ (1994) 35(3) Journal of Child Psychology 425–39. 471. Ibid. 472. (2000) ACL Rep 395 NSW 44. 473. (2004) 19 NeuroRehabilitation 69–78. 474. (1993) ACL Rep 395 WA 5. 475. (1996) ACL Rep 395 NSW 19. 476. (SC(Qld), Weld M, OS No 651/83, 26 September 1984, unreported). 477. (2000) ACL Rep 395 Vic 17. 478. Schetzer v Trathen (2007) 16 VR 318; [2007] VSC 161. This case was heard together with Diver v Diver [2007] VSC 146. 479. See cases 8, 9, 13 and 14 in Table 4.14.

480. (1938) 55 WN (NSW) 180. 481. (1983) 21 Sask R 328. 482. (1982) Law Soc Gaz 774. For further details, see case 10 in Table 4.14. 483. See 4.52. 484. [2015] QCA 286. 485. As to the meaning of which, see ACT and NT Acts s 7(7). 486. Re Beaumont [1980] 1 All ER 266 at 272; Jelley v Iliffe [1981] 2 All ER 29 at 34–5, 38; Re Iliffe [1981] Fam 128 at 136E. 487. (1928) 98 LJKB 49 at 53; 21 BWCC 401 at 408. 488. See also Tyler, pp 71–4. 489. The meaning of the words ‘partly dependent’ is briefly commented upon in 4.43. 490. NSW Act s 59(1)(b). 491. Re Fulop (1987) 8 NSWLR 679. 492. McEvoy v Public Trustee (1989) 16 NSWLR 92. 493. Re Sherborne Estate [2005] NSWSC 593 at [41]. 494. Tsivinski v Tsivinski (1992) ACL Rep 395 NSW 4; Pearson v Jones [2000] NSWSC 799; Nicholas v Nicholas [2013] NSWSC 697; Cameron v Davidson [2014] NSWSC 702; Fraser v Simmonds [2014] NSWSC 654; Griffiths v Craigie [2014] NSWSC 1339; and Grover v NSW Trustee [2015] NSWSC 1048. 495. [2012] NSWSC 275 at [113]. 496. [2014] NSWSC 1339 at [138]. 497. [2013] NSWSC 697 at [128]. 498. [2014] NSWCA 392 at [17]–[21], [65]–[67], [150]. 499. For a discussion of the terms ‘wholly or substantially maintained or supported’ and ‘otherwise than for full valuable consideration’, see 4.16. 500. (1978) 20 SASR 72. 501. (1984) 116 LSJS 222. 502. (1982) 98 LSJS 202. 503. (1993) ACL Rep 395 SA 7. 504. [2009] SASC 382. 505. (1982) 29 SASR 582. 506. Ibid at 592. 507. Harris v Bennett (No 3) (2004) 8 VR 425. See also Harris v Bennett (No 1) (2002) 8 VR 411.

508. [2003] VSC 318. 509. [2004] VSC 425. 510. [2007] VSC 399. 511. [2009] VASC 463. 512. [2015] VSC 398. 513. Justice Legislation Amendment (Succession and Surrogacy) Act 2014 s 3(2). Eligible persons now include grandchildren: see Vic Act s 90, ‘eligible person’, (i). 514. Feehan v Toomey [2014] VSC 488. 515. For cases of successful applications in WA, see Pead v Perpetual Trustees WA Ltd (1999) ACL Rep WA 4 and Franks v Kitson (2000) ACL Rep 395 WA 5. 516. [2016] WASC 163. 517. Re Horton [1976] 1 NZLR 251 at 254. 518. Re MacGregor [1961] NZLR 1077; Re Horton [1976] 1 NZLR 251 at 255. 519. Testator’s Family Maintenance Act 1906 (NZ) s 3(2). 520. Re Shrimpton [1962] NZLR 1000. 521. [1952] GLR 446. 522. As to the meaning of which, see ACT and NT Acts s 7(7). 523. See 4.13 and 4.15. 524. For successful NSW cases, see Clapham v Clapham (1992) ACL Rep 395 NSW 11; Underwood v Caulfield [2005] NSWSC 1164; Alexander v Jansson [2009] NSWSC 1000; and Elizabeth Ann Bremner v Graham [2016] NSWSC 633. 525. Parente v Parente (1982) 29 SASR 310. For another case by a parent, see In the Estate of Terry (1980) 25 SASR 500. 526. ACT: ACT Act s 7(1)(a) ‘partner’ and (9) ‘civil partner’, Legislation Act 2001, Dictionary definition of ‘civil partner’; NSW: NSW Act s 3(3) and s 57(1)(f) ‘Eligible persons’ (NSW 1982 Act s 6(1)(a)(ii) in definition of ‘eligible person’); NT: NT Act s 7(1)(a) ‘de facto partner’; De Facto Relationships Act s 3A inserted by Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 s 31; Qld: Qld Act s 41(1) ‘spouse’, Acts Interpretation Act 1954 ss 32DA(5)(a), 36; SA: SA Act s 6(ba) ‘domestic partner’, Family Relationships Act 1975 ss 11, 11A; Tas: Tas Act s 3A definition of ‘spouse’ in s 1, Relationships Act 2003 s 4; Vic: Vic Act s 90 ‘eligible person’ (a) ‘domestic partner’; s 3(1) ‘unregistered domestic partner’; WA: WA Act s 7(1)(a) ‘de facto partner’, Interpretation Act 1984 s 13A(1), (3). 527. ACT Act s 7(9). 528. NSW Act s 57(1)(e) and (2)(e) in ‘Eligible persons’ (NSW 1982 Act s 6(1)(d) in definition of ‘eligible person’). 529. Petrohilos v Hunter (1991) 25 NSWLR 343 at 346; Andrews v Howard [1999] NSWCA

409 at [10]. 530. Benney v Jones (1991) 23 NSWLR 559 at 565, 566. 531. NSW Act s 57(1)(f) ‘Eligible persons’ (NSW 1982 Act s 6(1)(a)(ii) definition of ‘eligible person’). In the NSW 1982 Act the required relationship is described as a ‘domestic relationship’, and a ‘domestic relationship’ will be either a ‘de facto relationship’, that is, a relationship between two adult persons who live together as a couple and who are not married to one another or related by family, or a ‘close personal relationship (other than a marriage or de facto relationship)’ between two adult persons, whether related or not by family, who are living together and one or each of whom provides the other with domestic support and personal care: see s 5 of the Property (Relationships) Act 1984 (NSW). Thus, ‘same-sex’ couples will be regarded, relevantly, as being in a de facto relationship. 532. Petrohilos v Hunter (1991) 25 NSWLR 343 at 346. 533. NSW Act s 3(3). 534. NT Act s 7(1)(a). 535. Qld Act s 5AA(2)(b)(ii). 536. Qld Act s 5AA(2)(ba). 537. SA Act s 6(ba). 538. Family Relationships Act 1975 (SA) s 11A; indeed, the definition of ‘domestic partner’ in s 11A is now so broad that it is difficult to imagine a person who was in a close personal relationship with the deceased who could not apply under the Act. 539. Tas Act s 2(2) definition of ‘spouse’. 540. Vic Act s 90, ‘eligible person’, (a). 541. Relationships Act 2008 s 39(1); Vic Act s 3(1) definition of ‘unregistered domestic partner’. 542. WA Act s 7(1)(a). 543. Hooper v Winten [2002] NSWSC 1071. 544. NSW Act s 57(1)(e). 545. NSW Act s 57(1)(f). The required relationship in the NSW 1982 Act was a ‘domestic relationship’ (see s 6(1)(a)(ii)) not ‘a close personal relationship’ (as now appears in s 57(1)(f) of the NSW Act). However, s 5 of the Property (Relationships) Act 1984 defines ‘domestic relationship’ as including a ‘close personal relationship’ so there has been no real change in the law. 546. NSW Act s 59(1)(b). For a discussion of ‘factors warranting’ see 2.58. 547. (SC(NSW), Needham J in Eq, No 2076/84, 4 June 1985, unreported, BC8500785). 548. See also Blackley v Proctor [2001] NSWSC 537; Ye v Fung (No 3) [2006] NSWSC 635. 549. Corcoran v Bizannes (SC(NSW), Needham J in Eq, No 2076/84, 4 June 1985,

unreported, BC8500785). 550. [2007] NSWSC 302. 551. [2014] NSWSC 34. 552. [2007] VSC 21. 553. [2009] VSC 541. 554. NSW Act ss 57(1)(e) and 59(1)(b); Qld Act s 40(c). 555. Vic Act s 90(d). 556. [2013] NSWSC 1200 at [138]. 557. ACT Act s 7(9). 558. Scherbakova v Stapleton [2001] NSWSC 213; Marsh-Johnson v Hillcoat [2008] NSWSC 1337. 559. Nelligan v Crouch [2007] NSWSC 840. 560. Josivovich v Stoikofski [2008] NSWSC 474. 561. Oakes v Oakes [2014] NSWSC 1312. 562. Dalton v Paull [2007] NSWSC 721. 563. Hurst v Public Trustee (2001) ACL Rep 395 NSW 8; Conlon v Public Trustee [2002] NSWSC 153; Whalen v Byrnes [2003] NSWSC 915. 564. Somogy v Kune [1999] NSWSC 1168; Pitkin v Henderson (2001) ACL Rep 395 NSW 30. 565. Massie v Laundy (SC(NSW) Eq Div, Young J, No 3008/85, 7 February 1986, unreported); Mitrovic v Perpetual Trustee Co [1999] NSWSC 900; Morgan v Public Trustee (1999) ACL Rep 395 NSW 73; Heffernan v Poyser (2000) ACL Rep 395 NSW 18; Meers v Permanent Trustee Co Ltd (2001) ACL Rep 395 NSW 3. 566. Pata v Vumbuca [2002] NSWSC 167; Stewart v Antoniolli [2006] NSWSC 389. 567. Corcoran v Bizannes (SC(NSW), Needham J in Eq, No 2076/84, 4 June 1985, unreported, BC8500783). 568. Estate Pascale [2016] NSWSC 443. 569. McCarthy v Tye [2015] NSWSC 1947. 570. (SC(NSW) Eq Div, Young J, No 3008/85, 13 October 1986, unreported). 571. [2014] NSWSC 585. 572. [2015] NSWSC 1713. 573. Petrucci v Fields [2004] VSC 425. 574. Thompson v MacDonald [2013] VSC 150. 575. Borebor v Keane [2013] VSC 35. 576. Whitehead v State Trustees [2011] VSC 424.

577. Fanning v Harding [2013] VSCA 208. 578. Lewis v Every [2013] VSC 445. 579. Wadsley v Sutherland [2015] VSC 344. 580. Iwasivka v State Trustees [2005] VSC 323. 581. [2011] VSC 424. The decision was upheld on appeal: see State Trustees v Whitehead [2012] VSCA 274. 582. SA Act s 6(j). For a United Kingdom case dealing with a claim by a sister, see Re Wilkinson [1978] 1 All ER 221.

[page 307]

Time Limits 5 Introduction 5.1 All jurisdictions provide time limits within which an application may be made. The purpose of these time limits on family provision applications is to ensure that applications do not unduly interfere with the prompt administration of the deceased’s estate.1 Similarly, the courts in all jurisdictions have power to extend the time limit in appropriate cases. The approach of the courts to applications for extensions of time is dealt with later in this chapter. Initially, all jurisdictions except New South Wales, Western Australia and Tasmania provided for a time limit of six months from the date of the grant of probate.2 The early legislation did not provide for cases of intestacy but, where applications in intestate estates were allowed, the limitation period was six months from the date of the grant of letters of administration. The New South Wales limit was three months from the date of the grant if the deceased died before the passing of the 1916 Act and 12 months from the date of the grant if the deceased died after the passing of the Act.3 There was no limit in the first Western Australian Act, but this was rectified in the 1939 Act when the usual six-month limit from the date of grant of probate was introduced.4 In Tasmania, the limit was three months.5 Several

[page 308] jurisdictions have moved away from the six-month limit, although it still applies in some. In New South Wales and Queensland, time begins to run from the date of death, not from the date of the grant.

Extensions of time after distribution 5.2 In the Australian Capital Territory, the Northern Territory, South Australia, Tasmania and Victoria, an application for an extension of time cannot be made after a final distribution of the estate.6 In the other jurisdictions, the relevant legislation does not prevent an extension of time from being granted after an estate has been distributed. In Queensland, an order cannot be made after the estate has been distributed,7 so an extension of time would be pointless after a final distribution. In New South Wales and Western Australia orders may be made after a final distribution,8 so the question is somewhat academic in those states. In Blunden v Blunden9 the estate was distributed five months after the grant but without notice of a claim. It was argued that distribution within six months of the grant was unlawful and should be disregarded. However, South Australia does not have a time limit in the section dealing with the protection of a personal representative.10 Protection is granted simply where the personal representative distributes without notice of a claim. It followed that distribution within six months of the grant in that case was not unlawful. It placed the personal representative at risk of an action for damages at the suit of a disgruntled applicant but that is all. The argument was rejected. In Younan v Younan (No 2)11 the normal time limit for an

application had passed. The application was one day late. The estate was finally distributed about three weeks before the normal time limit of six months from the grant for the making of an application. The personal representatives had notice of the claim. It was argued that ‘final distribution’ in s 99 of the Victorian Act should be read with ‘properly made’ in s 99A(3) of the Act and thus, if it has not been properly made, there has not been a final distribution. This argument was rejected. [page 309] Just as in Blunden’s case, the personal representative was at personal risk of an action for damages at the suit of the applicant but that was a matter for the parties, not the court. Had either argument succeeded, the courts in the three jurisdictions which do not allow orders to be made after a final distribution, namely Victoria, Queensland and Tasmania, would be able to circumvent the rule about extensions of time after a final distribution through the simple expedient of declaring a distribution which should not have been made as null and void. Apart from the above argument, it is worth noting that there are differences between the Victorian legislation and that of Queensland and Tasmania. For example, Queensland does not have an equivalent of the proviso in para (b) of s 99A(3) of the Victorian Act and Tasmania has no equivalent of s 44(3) of the Queensland Act or s 99A(3) of the Victorian Act. These differences tend to cloud the issue to some extent, but it is unlikely that the result would be any different in Queensland or Tasmania. There is nothing in s 11(4) of the Tasmanian Act to indicate that ‘final distribution’ should be read as implying that it must be properly made. In Queensland, as indicated above, an extension of

time after an estate has been distributed would be pointless. If there has been an improper distribution, other remedies are available.12

Time limits 5.3 Table 5.1 sets out the current position in all states and territories. However, certain practical and procedural implications may need to be considered in the context of these time limits, as discussed in 5.4 and 5.5. The National Committee for Uniform Succession Laws recommended that applications for family provision should be made within 12 months from the date of death of the deceased person.13

Table 5.1

Time limits

Jurisdiction Time limit ACT six months after grant

Legislation Family Provision Act 1969 s 9(1)

NSW

12 months after date of death

Succession Act 2006 s 58(2)

NT

12 months after grant

Family Provision Act s 9(1) [page 310]

Jurisdiction Time limit Qld nine months after date of death, but notice of the application should be given within six

Legislation Succession Act 1981 s 41(8)

months of the date of death: see 5.4 SA

six months after grant

Inheritance (Family Provision) Act 1972 s 8(1)

Tas

three months after grant

Testator’s Family Maintenance Act 1912 s 11

Vic

six months after grant

Administration and Probate Act 1958 s 99

WA

six months after grant

Family Provision Act 1972 s 7(2)

Queensland — caveat to formal time limitations 5.4 In Queensland, it is essential that written notice of the intention to make an application be given to the personal representative within six months of the date of death and thereafter the application made and written notice of this (or the application) served on the personal representative within nine months of the date of death of the deceased.14 If this is not done, an application brought within nine months of the date of death, the time limit provided by s 41(8) of the Act, may nonetheless be defeated on the basis that the deceased’s estate has already been validly distributed in terms of s 44(3) of the Act.15 Notice means something more than awareness of a possibility of a claim or knowledge that a person is considering a claim.16 Accordingly, the written notice should specifically state that there is an intention to make an application on the part of the person who signs the written notice — the proposed applicant or his or

her solicitor. A notice stating that a claim is being contemplated may not constitute a valid notice in terms of s 44(3) and (4) of the Act.17

Victoria — notice to the registrar 5.5 If no grant has been made, a notice under r 6.07 of the Supreme Court (Administration and Probate) Rules 2004 may be filed with the Registrar of Probates, stating that the applicant proposes to make [page 311] a claim for family provision. This does not constitute notice to the personal representative of the pending claim, but, when a grant of representation is made, the registrar will then notify the person lodging the notice that a grant has been made. By this means, the applicant or the applicant’s solicitor will become aware that the originating motion can be filed, and that the six-month period has commenced. A caveat should not be lodged in order to secure the position of a potential applicant. This prevents any grant from being made, and so delays the commencement of the proceedings as well as resulting in additional costs being incurred when the grant is sought. These costs will be ordered to be paid by the caveator if the caveat has been lodged when there is in fact no opposition to probate or letters of administration being granted. Time begins to run from the date of issue of the grant, not when the registrar endorses the praecipe indicating that it has been granted.18

When time begins to run 5.6 Apart from New South Wales and Queensland, time does not run until a grant of representation has been made. Indeed, in the other jurisdictions, the court has no jurisdiction to make an order until a grant has been obtained.19 However, apart from South Australia, provided a grant has been obtained at the time the application is heard, it does not matter that the proceedings were instituted beforehand.20 In South Australia, if proceedings are instituted before the grant, they will be struck out.21 If a grant in common form is made and that grant is subsequently contested in solemn form proceedings and a grant in solemn form with the same will is then made, time for the application begins from the date of the grant in common form, not the date of the solemn form grant.22 If a grant in common form is revoked for any reason and a fresh grant issues, time runs from the issue of the second grant.23 [page 312]

Extension of time 5.7 The first family provision legislation24 did not provide for any extension of time for the bringing of an application. However, when New Zealand passed a new Act in 1906, extending the time for the bringing of an application from six to 12 months from the date of the grant of probate, provision was also made for a further extension of 12 months, provided the application for the extension was made within 12 months of the date of the grant of probate.25 In 1922, the latter restriction was removed and an

application for an extension of time could be made at any time provided no distribution of the estate had occurred.26 The absence of provision for an extension of time, which was a feature of the 1900 New Zealand Act, was followed in Victoria, Tasmania, New South Wales and South Australia.27 In Western Australia, no time limit was fixed in the Guardianship of Infants Act 1920, but this was rectified in the 1939 Act. Queensland allowed extensions of time from the beginning.28 The overriding principle with regard to an extension of time is that it must enable the court to do justice between the parties.29 Gradually, the Australian courts were given the power to extend the time for the bringing of an application,30 and today all courts have power to extend time.31 Under the repealed Family Provision Act 1982 (NSW), an extension of time was able to be granted where the parties [page 313] had consented to it.32 However, this ground of extension of time does not exist in the current NSW Act: see s 58(2). Over many years, the courts have considered the general approach and guidelines to be applied in determining whether an extension should be granted. The general approach has been well described by Megarry VC in Re Salmon33 as follows: The time limit is a substantive provision laid down by the Act itself and it is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus, I think, no triviality: the applicant must make a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.

In that case the Vice-Chancellor proceeded to identify six guidelines in exercising the court’s discretion,34 viz:

1.

the discretion is unfettered;

2.

onus is on the applicant to establish sufficient grounds for an extension;

3.

the length of the delay and the reasons for it;35

4.

whether or not negotiations were commenced within the time limit;36

5.

whether or not the estate has been distributed;37 and

6.

whether refusal to extend time would leave the applicant without redress.

Some jurisdictions have developed their own approach in considering applications for an extension of time38 and in Australia guideline 6 has been effectively rejected.39 In New South Wales, an order that the time be extended should be sought in the summons. It is usually determined at the hearing and not as a separate issue.

When application is made 5.8 There are two views on the issue of when an application is made: 1.

when the summons or originating application has been filed in the court; or [page 314]

2.

when the summons or originating application has been filed and served on the other party or parties. Notwithstanding Sir Robert Stout’s remarks in McCarthy v

Mitchell40 supporting the latter, in most Australian jurisdictions, the former is the accepted view.41 As Henry J said in Re Geary:42 ‘The issue of an originating summons has, so long as my experience extends, always been accepted as the point at which time ceases to run.’ In South Australia, an application is deemed to be made when the summons by which it is instituted is served on the personal representative.43 In the Australian Capital Territory, New South Wales and the Northern Territory, the application is deemed to have been made on the day upon which the notice of motion or other document instituting the application is filed.44 In the Australian Capital Territory, the Dictionary to the Court Procedures Rules 2006 provides that a document is filed in the court if: (a) the document is lodged at the registry for filing by the court; or (b) filing of the document in the court by electronic communication is allowed under a practice note and the document is filed in accordance with the practice note.

Where extension may be granted 5.9 Each case for an extension of time must be dealt with on its own circumstances, including the position and rights of the parties whose interests are likely to be affected by the making of an order.45 However, a number of decided cases show the circumstances which have, and those which have not, found favour with the courts in considering applications for an extension of time. A study of such cases in deciding whether to grant an extension was described as helpful in Shannon v Public Trustee.46 An extension is likely to be granted in the following

circumstances: 1.

where there is an honest ignorance by the applicant of his or her rights under the Act and the beneficiaries are not adversely affected.47 [page 315] The beneficiaries are unlikely to be regarded as adversely affected by the mere loss of the benefit given by the statutory limitation period.48 Where the applicant is an infant, the knowledge of that infant’s rights under the Act which may be possessed by the parent or guardian, does not appear to be imputed to the infant49 and, thus, extensions of time are likely to be granted where the applicant is an infant.50 Applications by persons with an intellectual disability are also treated sympathetically.51 Because of the need to appoint a litigation guardian/next friend/tutor and to obtain medical and other reports and have the evidence considered by counsel, it is usually difficult, and often impossible, for a potential litigation guardian/next friend/tutor to make a decision to proceed with an application within the time allowed by the legislation;

2.

where the delay is short and excusable and the estate is still undistributed or substantially undistributed;52

3.

where the parties have been negotiating and the limitation period slipped by during this process;53

4.

where the applicant is aware of his or her rights but is unable to exercise them because of financial misfortune;54 and

5.

where the executors conceal from potential claimants the fact and date of death.55

Where extension is refused 5.10 1.

Applications are likely to be refused where:

the applicant knows of his or her rights and does not make an application for a substantial period of time;56 [page 316]

2.

there would be prejudice and injustice to the beneficiaries if it were allowed to proceed;57

3.

the estate has either been distributed or there is so little left in the estate as to make any order pointless;58

4.

the application is one where success is improbable59 or one which must fail on its merits;60

5.

the basis of the application is that the applicant’s financial position has deteriorated and the value of the estate has increased since the death of the deceased;61 or

6.

the delay is inexcusable and there is no manifest injustice.62

There is no limit to the length of the extension which may be granted and delays of many years can be found in some cases.63 The record seems to be held by Duncan v Perpetual Trustees WA Ltd64 where an extension was granted 26 years after the date of death. [page 317] However, in any application for an extension of time, a primary consideration must be whether the estate has been distributed.65

Factors generally relevant 5.11

Factors that may be regarded as generally relevant include:

1.

the size of the estate remaining undistributed at the time the application for an extension is brought;66

2.

the length of the delay;67

3.

the extent to which it is excusable because of ignorance of rights or otherwise;68 and

4.

the extent of any prejudicial effect on beneficiaries who have ordered their lives in reliance on the will or intestacy.69

The motives of the applicant are also relevant, but caution has to be exercised in giving weight to such motives, especially on affidavit evidence.70 Where the delay was brought about because the applicant did not fully understand his or her rights when explained, particularly where the applicant had intellectual difficulties, this may constitute sufficient cause to permit an extension of time.71 Some jurisdictions have identified specific factors relevant to the exercise of the discretion to extend time. These are set out below.

New South Wales and Queensland 5.12 In New South Wales and Queensland the relevant factors are said to be: 1.

the sufficiency of the explanation of delay in making the claim;

2.

whether there is any prejudice to beneficiaries;

3.

whether there has been any unconscionable conduct by the

applicant or the beneficiaries; and 4.

the strength of the applicant’s case.72 [page 318]

With regard to the last point, Townley J said in Re Terlier:73 ‘If it is improbable that the substantive application will succeed it seems idle to grant the extension.’ A similar view has been expressed by several New South Wales judges.74 A change of mind by the applicant does not amount to a sufficient explanation of the delay.75 However, if that change of mind was brought about by the lies or evasion of the personal representative, it does not prevent an extension of time being granted.76 A representation by a defendant that an extension of time would be permitted that is relied on by the applicant may amount to sufficient cause for not applying within time.77

Victoria 5.13

In Victoria the relevant factors are:

1.

the plaintiff must make out a case that will justify the granting of an extension78 or as it is sometimes described ‘an arguable case for relief’;79 however, the cases provide little assistance and no general guidance on what facts justify an extension of time;

2.

whether there is any prejudice to beneficiaries:80 in this context, ‘prejudice which flows from the order … is not the type of prejudice [page 319]

which the courts have recognised’.81 The one and perhaps only example provided by the Victorian courts is where a distribution has been made to some but not all beneficiaries and as a result there will be an injustice (prejudice) to the beneficiaries who have not received a distribution;82 and 3.

the strength of the plaintiff’s claim. There has been a shift in judicial views on the relevance and the degree of importance to be given to this factor. In the early cases of Re Guskett83 and Re Barrot84 it was considered to be of no relevance, but subsequent cases have taken a contrary view.85

In New Zealand, the concept of ‘manifest injustice’, which was said in Re Barrot to refer to the ‘glaring case’,86 was developed to cover cases where the strength of the claim was so great that an extension of time would be allowed even if the delay was inexcusable.87 In Re Guskett88 an extension on this basis was rejected because of the possibility that an applicant might delay making an application so as to build up a stronger case for an extension of time. Re Guskett was followed in Re Barrot89 and in several cases from other jurisdictions.90 In Re Nassim91 the executors deliberately concealed the true extent of the estate’s assets from the applicants for three years and an extension of time was granted on the basis of a manifest injustice. Some recent support for an extension on this basis may be found in Valbe v Irlicht92 where Gillard J said: ‘to deny a person an extension of time in the face [page 320] of a strong claim could amount to an injustice’.93 In Ashhurst v Moss94 Hansen J disagreed with this statement because it carried

the risk of unduly elevating the weight to be given to the strength of the claim. In the Court of Appeal decision in Ansett v Moss Buchanan JA said that the strength of an applicant’s claim ‘is a relevant factor to be considered, together with other factors’.95 Although the relevance of this factor is undoubted, the weight to be given to it and thus whether ‘manifest injustice’ has a future in Victoria is clearly uncertain. Section 99 of the Victorian Act limits an extension of time to estates which have not been finally distributed. An argument was mounted in Younan v Younan (No 2)96 that because the estate in that case was distributed within six months of the grant of probate, it was not ‘properly made’ pursuant to s 99A of the Act and was not, therefore, a final distribution. This argument was rejected and was followed by a judicial plea for legislative change. In South Australia, where the legislation regarding an extension of time is the same, an application was dismissed in Blunden v Blunden.97 Curiously, it would appear that an executor can defeat a claim in Victoria by distributing the estate as soon as possible.

South Australia 5.14

In South Australia the relevant factors are:

1.

the length of the delay;

2.

the reasons for the delay; and

3.

whether there is any prejudice to the defendant.98

Western Australia 5.15 1.

In Western Australia the relevant factors are:

the applicant must establish sufficient grounds for an extension;

2.

the whole of the circumstances must be looked at and not least the reasons for the delay and also the promptitude with which the letter before action or otherwise was issued;

3.

whether or not negotiations commenced within the time limit; [page 321]

4.

whether the estate has been distributed or not; and

5.

whether a refusal to extend time would leave the claimant without redress against anybody.99

When is the estate distributed? 5.16 There is a considerable difference of opinion as to when an estate has been distributed. Until parliament intervened, the general view was that final distribution refers to the point of time at which the personal representative, having completed the administration of the estate, becomes a trustee.100 In Easterbrook v Young,101 a decision on appeal from the Supreme Court of New South Wales, the High Court said that an application could be made after a personal representative has completed his or her duties and is holding the estate as a trustee, provided there has been no final distribution of the estate. The term ‘final distribution’ was held to mean a physical parting of possession and a complete removal of the assets from the hands of the personal representative. That decision was, of course, based on ss 4, 5(2A) and 11(3) of the New South Wales Testator’s Family Maintenance and Guardianship of Infants Act 1916. None of these sections occurs in

the Queensland legislation and several sections do not appear in the legislation of some of the other states. Specifically: Section 4 of the New South Wales Act of 1916, deeming the Family Provision order to take effect as a codicil to the will,102 occurs in every state and territory except Queensland.103 The reference to final distribution in s 5(2A) of the New South Wales Act of 1916 does not exist in Queensland, Tasmania or Western Australia, but occurs in all other jurisdictions.104 [page 322] Section 11(3) of the New South Wales Act of 1916, which allows the court to make an order out of distributed assets, has equivalents only in the Australian Capital Territory, the Northern Territory, and South Australia.105 Easterbrook v Young has no application in Queensland because of the major differences in legislation between New South Wales and Queensland.106 It should be noted that in Re Lowe107 an argument was put by counsel that the equitable doctrine of tracing was a possible basis for allowing orders to be made against a beneficiary after a distribution has been made, but this was firmly rejected. It is unlikely that the case would have much application in Tasmania, where the provisions most closely resemble those of Queensland. It has been held that Easterbrook v Young applies in Victoria.108 In South Australia, it has been said that there are no differences between the legislation of New South Wales and South Australia which would allow the South Australian court to distinguish Easterbrook v Young.109 It follows that in Queensland, and probably Tasmania, the

estate is distributed when the personal representative has completed administering the estate and holds the assets as a trustee. In Victoria, the estate is distributed when the personal representative has physically parted with possession of the estate assets. In the other jurisdictions, legislation allows orders to be made after a distribution and thus Easterbrook v Young is of no practical relevance in those jurisdictions. This legislation is not uniform and is discussed on a jurisdiction-by-jurisdiction basis at 2.61. Courts in New South Wales110 and South Australia111 have granted injunctions to restrain personal representatives from distributing [page 323] estates. In New South Wales, an injunction was granted even though the personal representative was the sole beneficiary and was holding the assets as beneficial owner rather than as trustee.112 The granting of injunctions to restrain a personal representative from making a distribution, other than a distribution under s 94(1) of the Succession Act 2006 or s 92A of the Probate and Administration Act 1898 now has legislative sanction in New South Wales.113 In our view, the Queensland position is to be preferred. It applies normal estate distribution principles and ensures certainty for beneficiaries. For the effect of a distribution on the court’s power to make a family provision order, see 2.61.

Effect of transmission applications

5.17 In Re Lago114 it was held that once the transmission documents have been lodged in the Titles Office and if the beneficiary and personal representative are one and the same person, the estate has been effectively distributed and an extension of time will, at that point, be refused. It would seem that, if a transmission application but no memorandum of transfer has been lodged, and the personal representative and ultimate transferee are one and the same person, then the estate is no longer in existence and an application for extension will be refused.115 The position is likely to be different if the transmission was lodged to enable the personal representative and sole beneficiary to sell the property to pay debts of the estate. In these circumstances, the administration of the estate is clearly continuing. The principle behind such a result is that, where the legal and equitable interests are united in the same person, the equitable interest merges with the legal interest.116 Stated in another way, a person cannot be trustee for himself or herself.117

Oversight by a solicitor 5.18 Where a solicitor has been responsible for the delay, there is a diversity of judicial opinion on whether the applicant should be granted an extension of time or left with the option of pursuing a negligence claim against the solicitor. [page 324] In Charles v Charles118 it was held that an extension ought not to be granted where an application comes to a solicitor before the limitation period expires and the solicitor does not file a

summons within time, unless there are other facts justifying an extension. In that case Young J said:119 It does not matter that the solicitor has been diverted from her task by counsel sitting on a brief for too long or a court losing a file or her children all coming down with chicken-pox at the same time, there must be something more than mere incompetence or inattention by a solicitor before time can be extended under this Act.120

However, it should be noted that an extension of time was granted in this case as notice of intention to apply had been given before the limitation period had expired and the beneficiaries were not prejudiced by the extension. A similar view was taken by Sir Robert Megarry VC in Re Salmon,121 where his Honour said: [C]an the widow be said to have made out a sufficient case for extending a substantive statutory time limit, and not one that is merely procedural, when there lies to hand, if no extension is granted, possible, and indeed probable, proceedings for negligence against the solicitors who were responsible for the delay and have put forward such unsatisfactory explanations? Would it be just to extend the time so that the beneficiaries must pay (if the claim succeeds) and the solicitors will escape? It seems to me that the answer must be No.

Although these cases could be regarded as adopting a hard line on the issue, they must be read in context. In Charles v Charles other facts did exist and an extension was granted, and in Re Salmon most of the estate had been distributed by the executor. In Adams v Schofield122 the Court of Appeal considered the approach of Sir Robert Megarry VC in Re Salmon. It considered a negligence action against a solicitor for the delay to be the appropriate remedy only where the beneficiaries would suffer severe prejudice if the extension were granted. The mere loss of the benefit given by the statutory limitation period was not seen as amounting to such prejudice.123 It would seem also that, as long as the estate has not been distributed, an applicant may argue that the beneficiaries have not suffered any real prejudice.

[page 325] Accordingly, as long as the delay is otherwise excusable, the Court of Appeal considered that an extension ought to be granted. Some cases have considered the existence of a claim against the solicitor as a circumstance that may be taken into account when deciding whether or not to grant an extension,124 but it would be wrong to conclude that an extension will not be granted where the limitation period has expired through the fault of a solicitor.125 Cases where an extension has been granted notwithstanding the solicitor’s responsibility for the delay include Re Traeger,126 Brown v Holt,127 Re Prakash,128 Kalmar v Kalmar129 and Gibson v Haselgrove.130 It seems to the authors that one explanation for the divergence between rhetoric and practice was given by Ipp J in Grigoriou v Nitsos131 when he pointed out132 that the prosecution of a claim against the solicitor would take far longer and be more expensive than a claim under the Act. In addition, the amount likely to be paid in damages could well be less than the amount which might have been ordered under the Act.133 In other words, it is an alternative, but not a particularly practical one. In Pilton v Pilton134 it was pointed out that additional evidence concerning the action taken by the plaintiffs in having proceedings issued was allowed to be introduced at the appeal in Grigoriou v Nitsos and it was this evidence that allowed the appeal to succeed. It was said that this appeal ‘illustrates the extent to which the court attached importance to the steps taken by the claimants personally to advance their claim’.135 Following this approach, it seems then that any action against the solicitor must be regarded as an action of last resort.

_______________________ 1.

Andre v Perpetual Trustees WA Ltd [2009] WASCA 14 at [38]; Underwood v Gaudron [2014] NSWSC 1055 at [113].

2.

Administration and Probate Act 1929 (ACT) s 112(1); Testator’s Family Maintenance Ordinance 1929 (NT) s 5; Testator’s Family Maintenance Act 1914 (Qld) s 3(8); Testator’s Family Maintenance Act 1918 (SA) s 4; Widows and Young Children Maintenance Act 1906 (Vic) s 11; Administration and Probate Act 1915 (Vic) s 117; Testator’s Family Maintenance Act 1900 (NZ) s 4. Six months was also the preferred period in the United Kingdom: see the Inheritance (Family Provision) Act 1938 (UK) s 2(1).

3.

Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) s 5.

4.

Guardianship of Infants Act 1920 (WA) s 11; Testator’s Family Maintenance Act 1939 (WA) s 4.

5.

Tas Act s 11.

6.

ACT Act s 9(4); NT Act s 9(4); SA Act s 8(4); Tas Act s 11(4); Vic Act s 99A 1st proviso.

7.

See 2.61.

8.

Ibid.

9.

[2008] SASC 286.

10.

See SA Act s 14(1). Most jurisdictions have a section protecting a personal representative from liability where a distribution is made after a certain period after the date of death or after the date of grant. See ACT Act s 20(2); NSW Act ss 93, 94(4); NT Act s 20(1); Qld Act s 44(3); SA Act s 14(1); Vic Act s 99A(3); WA Act s 20(1). South Australia has no time limit. Tasmania does not have such a provision.

11.

[2015] VSC 549.

12.

Vickers v Pickering [2016] QDC 58. For a NSW case involving an improper distribution see Ernst v Mowbray [2004] NSWSC 1140.

13.

See the Committee’s Report of December 1997 (QLRC Miscellaneous Paper 28, p 42).

14.

Qld Act s 44(3), (4).

15.

See Re McPherson [1987] Qd R 394.

16.

Re Salmon [1980] 3 All ER 532 at 534–5.

17.

Ibid.

18.

Re Brien [1953] VLR 585.

19.

Re Jenner [1960] Qd R 349 (FC); Burns v Elder’s Trustee & Executor Co Ltd [1968] SASR 297.

20.

Re Purnell [1961] QWN 34; Leue v Reynolds (1986) 4 NSWLR 590.

21.

Nobile v Scragg [2011] SASC 182.

22.

Re Miller [1968] 3 All ER 844.

23.

Re Park (1972) 66 QJP 25. The case of Re Bidie [1948] 1 All ER 885, which held that in such cases time runs from the first grant, is distinguishable on the basis of a difference in the legislation. See also Re Bidie [1949] 1 Ch 121, where this matter is discussed in the English context.

24.

Testator’s Family Maintenance Act 1900 (NZ).

25.

Testator’s Family Maintenance Act 1906 (NZ) s 3(9).

26.

Family Protection Amendment Act 1921–22 (NZ) s 2. The wording of the NZ Act was the cause of a major difference of opinion between the New Zealand and Australian courts: see Re Magson [1983] NZLR 592 (CA) and Easterbrook v Young (1977) 51 ALJR 456.

27.

Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) s 5; Testator’s Family Maintenance Act 1918 (SA) s 4; Testator’s Family Maintenance Act 1912 (Tas) s 11; Widows and Young Children Maintenance Act 1906 (Vic) s 11.

28.

Testator’s Family Maintenance Act 1914 (Qld) s 3(8); Testator’s Family Maintenance Act 1939 (WA) s 4.

29.

Fanning v Harding [2013] VSCA 208 at [13].

30.

Administration and Probate Act 1953 (ACT) s 2; Administration of Estates Act 1954 (NSW) s 4; Family Provision Act 1970 (NT) s 9(2); Testator’s Family Maintenance Act 1914 (Qld) s 3(8); Testator’s Family Maintenance Act 1943 (SA) s 4; Limitation of Actions Act 1954 (Tas) second schedule; Administration and Probate (Testator’s Family Maintenance) Act 1937 (Vic) s 6; Testator’s Family Maintenance Act 1939 (WA) s 4.

31.

ACT Act s 9(3); NSW Act s 58(2); NT Act s 9(2); Qld Act s 41(8); SA Act s 8(2); Tas Act s 11(2); Vic Act s 99; WA Act s 7(2)(b).

32.

NSW 1982 Act s 16(3)(a).

33.

[1981] Ch 167 at 175; Stone v Stone [2016] NSWSC 605 at [36].

34.

[1981] Ch 167 at 175, 176.

35.

See 5.11 (2.).

36.

See 5.9 (3.).

37.

See 5.16.

38.

See 5.12–5.15.

39.

See Swainston v Muni [1999] WASC 201 at [16]; and see also 5.18.

40.

[1924] NZLR 847.

41.

Re Barlow [1946] NZLR 38 at 40; Re Chittenden [1970] 3 All ER 562; Re Geary [1971] NZLR 523 at 525; Re Rough [1976] 1 NZLR 604 at 608.

42.

[1971] NZLR 523 at 525.

43.

SA Act s 8(6).

44.

ACT Act s 9(5); NSW Act s 58(3) and see Madden-Smith v Madden [2012] NSWSC 146 at [23], [24]; NT Act s 9(5).

45.

Hoffmann v Hoffmann (1909) 29 NZLR 425 at 428; Re McGregor [1960] NZLR 220 at 231; Re Wherrett [1963] Tas SR 178 at 180; In the Estate of Barry (1974) 9 SASR 439 at 445.

46.

[1970] VR 876 at 879.

47.

Re O’Connor [1931] QWN 39; Re Barrot [1953] VLR 308; Coates v NTE&A (1956) 95 CLR 494 at 505; Re Nelson [1961] QWN 7; Re Claverie (1970) 91 WN (NSW) 858; In the Estate of Barry (1974) 9 SASR 439; McGowan v Hall (1991) ACL Rep 395 WA 8; Wakefield v Wakefield (1992) ACL Rep 395 Vic 6; Marshall v Public Trustee [2006] NSWSC 402; Menzies v Marriott [2009] VSC 345.

48.

Adams v Schofield (CA(UK), Sir Stanley Rees, Ormrod and Dunn JJ, 22 July 1981, unreported); see Tyler, Appendix A, pp 319–27.

49.

Re Terlier [1959] QWN 5.

50.

Re Lawrence [1973] Qd R 201.

51.

Re Wood [1955] NZLR 544 at 545.

52.

O’Shea v O’Donnell [1929] GLR 519; Re Jamieson (1967) NZLJ 506; Re Wherrett [1963] Tas SR 178 at 180; Clayton v Aust (1993) 9 WAR 364; Re Little (1995) 16 QL Rep 39.

53.

Corbey v Boonstra [1923] GLR 433. This principle has been followed in Australia (Amos v Amos [1966] VR 442) and in the United Kingdom (Re Salmon [1980] 3 All ER 532 at 537).

54.

Coffey v Bennett [1961] VR 264.

55.

Re Stewart [2004] 1 NZLR 354.

56.

Re Milne [1917] NZLR 687; Re Guskett [1947] VLR 212; Curran v McGrath [2010] QCA 308.

57.

Re Newton (1950) 76 WN (NSW) 479; see also 5.13.

58.

Sollitt v Fairhead [1924] GLR 533; Re Heberley [1971] NZLR 325 (CA) at 340; Re Rough [1976] 1 NZLR 604; Re Magson [1983] NZLR 592 (CA); Re Terlier [1959] QWN 5; Re Donkin [1966] Qd R 96; Re Michel [1939] QWN 49; Re Walker [1967] VR 890; Spies v Baker [1970] 3 NSWR 39; Curran v McGrath [2010] QCA 308. In the Australian Capital Territory and the Northern Territory, s 9(4) of their respective Family Provision Acts provides that an application for extension may not be made after the estate has been lawfully and fully distributed. In South Australia an order may be made after the estate has been distributed but not where an application was not filed and served within time and an application for an extension of time was made after the distribution. See 2.61. The limitation on extensions of time in South Australia is the same in Victoria. This same limitation prevented an extension of time being granted in Younan v Younan (No 2) [2015] VSC 549.

59.

Re Dun [1956] SR (NSW) 181; Re Terlier [1959] QWN 5; Re Walker [1967] VR 890; Valbe v Irlicht [2001] VSC 53.

60.

Ball v Newey (1988) 13 NSWLR 489 (CA) at 493. The trial judge refused an extension on this ground. The Court of Appeal did not disagree with this proposition but simply held that, on its merits, the case had some prospects of success.

61.

Re Lauer [1984] VR 180; Mortimer v Lusink [2016] QSC 119.

62.

Newman v Newman [1927] NZLR 418 sub nom Re Gracia; Newman v Newton [1927] GLR 215 (CA); Sheehan v Public Trustee [1930] NZLR 1. This ground is most likely to apply only in New Zealand. However, there has been limited support for the ‘manifest injustice’ principle in Australia: see 5.13.

63.

New Zealand: Re Smith [1927] NZLR 342 (7 years); Re Wakelin [1927] NZLR 846 (12 years); Re Brown [1949] NZLR 509 (11.5 years); Re Hill (1967) NZLJ 49 (22 years). Australia: Re Donkin [1966] Qd R 96 (9 years); Shannon v Public Trustee [1970] VR 876 (11 years); Re Claverie (1970) 91 WN (NSW) 858 (16 years); Easterbrook v Young (1977) 51 ALJR 456 (14 years).

64.

(1995) ACL Rep 395 WA 1.

65.

See 5.16.

66.

See the cases referred to in note 52 above.

67.

Shannon v Public Trustee [1970] VR 876; Re Hale [1981] 1 NZLR 705 at 709. See also Re Traeger [1948] SASR 248.

68.

Hoffmann v Hoffmann (1909) 29 NZLR 425; 12 GLR 220. In the Australian cases, an oversight by the solicitor is not imputed to the proposed applicant: see Re Traeger [1948] SASR 248; Brown v Holt [1961] VR 435; Re Prakash [1981] Qd R 189; however, see 5.18.

69.

Re Magson [1983] NZLR 592 (CA) at 598.

70.

Ibid.

71.

Chan v Chan [2016] NSWCA 222 at [64] per Basten JA (with whom Simpson and Payne JJA agreed).

72.

NSW: Warren v McKnight (1996) 40 NSW LR 390 at 394; Dare v Furness (1998) 44 NSW LR 493 at 500; Lewis v Lewis [2001] NSWSC 321 at [57]–[60] and [80]–[85]; Whalen v Byrnes [2003] NSWSC 915; Cetojevic v Cetojevic [2006] NSWSC 431; Sikorski v Michalowski [2007] NSWSC 666; Ebert v Ebert [2008] NSWSC 1206 at [38]–[45]; Campbell v Chabert-McKay [2010] NSWSC 859 at [47]; Burton v Moss [2010] NSWSC 163 at [31]–[58]; Charnock v Handley [2011] NSWSC 1408 at [32]; Davis v Davis [2012] NSWSC 201; John v John [2010] NSWSC 937; Durham v Durham [2010] NSWSC 389; Burton v Moss [2010] NSWSC 163; Harrisson v Skinner [2013] NSWSC 786; Hedman v Frazer [2013] NSWSC 1915; Verzar v Verzar [2014] NSWCA 45 at [25]; Milewski v Holben [2014] NSWSC 388; Underwood v Gaudron [2014] NSWSC 1055; QLD: Bird v Bird [2002] QSC 202; Pitman v Chant [2005] QSC 038; Enoch v Public Trustee [2006] 1 Qd R 144; [2005] QSC 194.

73.

[1959] QWN 5.

74.

Mikulic v Public Trustee [2006] NSWSC 256 at [29].

75.

Zirkler v McKinnon [2002] NSWSC 285; Foley v Foley [2008] NSWSC 233; Taylor v Farrugia [2009] NSWSC 801; Henry v Hancock [2016] NSWSC 71 at [47]; Stone v Stone [2016] NSWSC 605 at [36].

76.

Seeto v Seeto [2013] NSWSC 1232.

77.

Stone v Stone [2016] NSWSC 605 at [38].

78.

Re Guskett [1947] VLR 212 at 214; Re Barrot [1953] VLR 308 at 312; Groser v Equity Trustees Ltd (2007) 16 VR 101 at 106; [2007] VSC 27 at [30], [31]; Menzies v Marriott [2009] VSC 345 at [6].

79.

Re Walker [1967] VR 890 at 892; Re McPhail [1971] VR 534 at 548; Re Lauer [1984] VR 180 at 186; Ashhurst v Moss (2006) 14 VR 291 at 317; [2006] VSC 287 at [111].

80.

Groser v Equity Trustees Ltd (2007) 16 VR 101 at 105; [2007] VSC 27 at [28]; Day v Raudino [2009] VSC 463 at [5]; Menzies v Marriott [2009] VSC 345 at [52]–[54].

81.

Groser v Equity Trustees Ltd (2007) 16 VR 101 at 105, 106; [2007] VSC 27 at [28]. White J in Bird v Bird [2002] QSC 202 at [24] could be seen as supporting this view of the type of prejudice required. See also 5.11 (4.) which may be another type of relevant prejudice.

82.

Ibid; Menzies v Marriott [2009] VSC 345 at [52].

83.

[1947] VLR 212.

84.

[1953] VLR 308.

85.

Valbe v Irlicht [2001] VSC 53 at [31]; Ansett v Moss [2007] VSCA 161 at [11] per Buchanan JA; Groser v Equity Trustees Ltd (2007) 16 VR 101 at 107; Menzies v Marriott [2009] VSC 345 at [54].

86.

[1953] VLR 308 at 314.

87.

Re Wakelin [1927] NZLR 846; Re Brown [1949] NZLR 509; Re Ward [1964] NZLR 929; Re Magson [1983] NZLR 592 at 598.

88.

[1947] VLR 212 at 215.

89.

[1953] VLR 308.

90.

Re Wherrett [1963] Tas SR 178; Nenke v Nunn [1967] WAR 79; and in Papua New Guinea Re Gilmore (1963) 5 FLR 371.

91.

[1984] VR 51. In Re Slattery (SC(NT), No 809/89, unreported) Kearney J expressed support for the New Zealand ‘manifest injustice’ principle but it was not necessary to decide the question his Honour had to answer by resorting to that principle. His Honour expressed support for Re Nassim.

92.

[2001] VSC 463; Buckeridge v Buckeridge [2016] WASC 163.

93.

This view was repeated by his Honour in Groser v Equity Trustees Ltd (2007) 16 VR

101 at 107. 94.

(2006) 14 VR 291 at 317.

95.

[2007] VSCA 161 at [11].

96.

[2015] VSC 549.

97.

[2008] SASC 286.

98.

Re Barry (1974) 9 SASR 439; Delisio v Santoro (2002) 218 LSJS 199; Hellwig v Carr [2009] SASC 117 at [15]; Lang v Australian Executor Trustees Ltd [2013] SASC 171.

99.

Clayton v Aust (1993) 9 WAR 364; Swainston v Muni [1999] WASC 201; Young v Kestel [2003] WASC 190 at [78]–[80]; Bickford v Bickford [2006] WASC 268; Pilton v Pilton [2008] WASC 303; Triplett v Public Trustee [2009] WASC 64; Rainoldi v Rainoldi [2015] WASC 487 at [5].

100. Dix v Burford (1854) 19 Beav 409; 52 ER 408; Public Trustee v Kidd [1930] NZLR 1; Re Donohue [1933] NZLR 477; Re Perry [1950] NZLR 530; Re Cockburn’s Will Trusts [1957] Ch 438 at 439, 440; Lilley v Public Trustee [1978] 2 NZLR 605; Re Magson [1983] NZLR 592 at 597. 101. (1977) 51 ALJR 456. 102. See 8.12 for the current position. 103. ACT Act s 16(1); NSW Act s 72(1); NT Act s 16(1); SA Act s 10; Tas Act s 9(3); Vic Act s 97(4); WA Act s 10. 104. ACT Act s 9(4); NT Act s 9(4); SA Act s 8(4); Vic Act s 99. 105. ACT Act s 20; NT Act s 20; SA Act s 14(3); Administration Act 1969 (NZ) s 49. 106. Re Lowe [1964] QWN 37; Re Postle (SC(Qld), Andrews J, OS No 796/81, 4 December 1981, unreported); Re Burgess [1984] 2 Qd R 379 at 384; Re McPherson [1987] 2 Qd R 394; Re Parry (1991) ACL Rep 395 Qld 11; Re Prufert (1991) ACL Rep 395 Qld 14. This view has been accepted by the Queensland Court of Appeal: see Holmes v Webb (SC(Qld), Davies and Demack JJ, OS No 542/89, 18 August 1992, unreported). For further discussion on this point, see Dawson v Fitch (2002) 84 SASR 20 and R Barber, ‘The Spectre of Easterbrook v Young in Queensland’ (1984) 14 Queensland Law Society Journal 15. In Baker v Williams & Brunner [2007] QSC 226 this point was reargued but the result was the same as in all previous decisions. 107. [1964] QWN 37. 108. Groser v Equity Trustees Ltd (2007) 16 VR 101. See also Re McPhail [1971] VR 534, in which the New Zealand authorities were followed, and which was disapproved in Easterbrook v Young. 109. Dawson v Fitch [2002] SASC (FC) 12 at [46]. 110. Packo v Packo (1989) 17 NSWLR 316; see also Davern Wright, p 164. 111. Re Gough (1973) 5 SASR 559.

112. Packo v Packo (1989) 17 NSWLR 316. 113. NSW Act s 62(3). 114. [1984] VR 706. 115. Re Heberley [1971] NZLR 325 at 333–4, 345–6. 116. Re Turkington [1937] 4 All ER 501; Re Annett [1956] NZLR 929. 117. Re Turkington [1937] 4 All ER 501 at 504. 118. (SC(NSW) Eq Div, Young J, No 3302/86, 25 March 1988, unreported). 119. At p 7 of his Honour’s reasons. 120. This statement was described in Cetojevic v Cetojevic [2006] NSWSC 431 at [55] as a rule of thumb, but one that did not confine the statutory discretion. 121. [1980] 3 All ER 532 at 538. 122. (1981) reported in Tyler, Appendix A, pp 319–27. 123. Adams v Schofield (1981) per Ormrod LJ: see Tyler, p 327. 124. Re Greaves [1954] 1 WLR 760; Re Salmon [1980] 3 All ER 532. For a contrary view, see Re Bone [1955] 2 All ER 555; [1955] 1 WLR 703. 125. Kalmar v Kalmar [2006] NSWSC 437 at [24]. 126. [1948] SASR 248. 127. [1961] VR 435. 128. [1981] Qd R 189. 129. [2006] NSWSC 437. 130. [2009] NSWSC 496. 131. [1999] WASCA 42. 132. Ibid at [29]. 133. Ibid. 134. [2008] WASC 303. 135. Ibid at [29].

[page 326]

6

Duties of the Personal Representative Introduction

6.1 In family provision applications, a personal representative and his or her counsel have certain duties. Non-compliance with some of them can result in a damages or costs order being made against the personal representative personally.

Duty not to distribute assets after a notice of application 6.2 A personal representative is sometimes under pressure from the beneficiaries to make a distribution, either total or partial, notwithstanding the fact that he or she has notice of a family provision claim against the estate. There is a duty to resist that pressure.1 A distribution made by a personal representative in such circumstances is said to constitute an embarrassment to the court2 and the paramount duty of the personal representative is to avoid such an embarrassment.3 Putting the matter in practical terms, the personal representative has a duty to preserve the deceased’s estate

until the order of the court is made.4 This duty may be enforced by injunction.5 If the personal representative fails in this duty by making a distribution in the face of a claim, he or she will be personally liable for any loss [page 327] sustained by the applicant as a result.6 In one case, for example,7 the penalty for the breach was an order that the personal representative transfer a one-third interest in a house property to the applicant and that the costs of each party be taxed as between solicitor and own client on the basis of a one-day trial and paid out of the estate. As the respondent was the sole beneficiary, this meant that he had to pay all costs. In another case, the transfers of property were set aside and the executor was ordered to pay the costs of this re-conveyance and the costs of the application on a solicitor and client basis.8

New South Wales — distribution following s 93 notice 6.3 Section 93(1) of the NSW Act provides that a legal representative may distribute property in an estate, if: more than six months has expired since the deceased person’s death; and the legal representative has given notice in the prescribed form that distribution will be made after the expiration of a specified time (provided that this is not less than 30 days after the notice is given); and that time has expired; and

the legal representative has no notice of any application or intended application for family provision. Where the distribution is made in accordance with s 93(1), the personal representative is not liable to an applicant for family provision in respect to that distribution if: the personal representative did not have notice of the application at the time of the distribution;9 and the distribution was properly made by the personal representative.10 On its face, the section contemplates the protection of a legal representative who complies with these conditions. However, it appears that the section in its current form has limited practical application or utility. Section 93 replaced s 35 of the NSW 1982 Act. The latter section was carefully considered by Master Macready in D’Albora v D’Albora11 and he [page 328] concluded that it only provided protection to a personal representative in circumstances where an application had been commenced but not served on the personal representative.12 As s 35(2) gave protection to a personal representative in similar terms to s 93(2),13 it is difficult to argue that s 93(2) should not be similarly viewed. As to the requirement that the distribution be properly made by the personal representative, contained in s 93(2)(b), its meaning has not been the subject of judicial comment to the writers’ knowledge. It may require that the distribution has not been

made in ‘unseemly haste’14 or in circumstances that constitute an interference with the administration of justice.15

Notice of application given after time limit 6.4 If the personal representative receives notice of a claim16 after the time limit for bringing an application has expired but before the estate has been distributed, there is a conflict of duty between continuing with the due administration of the estate, including its distribution, or preserving it until the court has ruled on the proposed application. This conflict may be resolved by the personal representative giving the proposed applicant notice that, unless an application, including an application for extension of time, is filed and served on the personal representative within a specified time, which should be short but reasonable, the personal representative will proceed to distribute the estate. However, if the personal representative has a belief only that a claim is likely or possible, but the time for the bringing of an application has passed, the distribution of the estate should proceed. Speaking generally of a trustee’s duties, it has been said that, where the usual advertisement procedure has been followed17 and no notice of a claim has been received, the personal representative should not delay in making the distribution on the grounds that a claim may arise unexpectedly.18 In New Zealand it has been held that an executor is not under a general duty to advertise the fact of death or to inform all potential applicants of the fact of death. This applies even where there may be a suspicion that a particular person may wish to make a claim. However, the executor has a duty of evenhandedness to potential applicants where he or she is aware that

they do wish to make a claim and must not actively and dishonestly conceal relevant material about the estate [page 329] from potential applicants who seek information about the estate.19 We consider the reasoning in Sadler’s case is likely to apply in Australia. It was applied in Victoria in 2015.20

Exceptions to the duty not to distribute 6.5

The following are exceptions to the duty not to distribute:

1.

There is no doubt that debts can be paid.21

2.

Where an applicant is also a beneficiary, the personal representative may pay the applicant his or her benefit, as a beneficiary, provided the personal representative has reasonable grounds to believe that the applicant/beneficiary will receive provision greater than the benefit provided under the will or intestacy.22

3.

A personal representative may make a distribution in the face of a claim if he or she acts on legal advice and with the consent of all parties who might conceivably be affected by the distribution.23 If an applicant beneficiary is pressing for a distribution and other applicants or beneficiaries do not agree to it, the personal representative may apply to the court for direction. If the court considers that the withholding of consent by any party is unreasonable, it may visit the unreasonable party with costs.24

4.

In the Australian Capital Territory, the Northern Territory and Western Australia, a personal representative is specifically

authorised to provide for the maintenance, support and education (and in the case of the Australian Capital Territory and Northern Territory, ‘advancement in life’) of persons who were totally or partially dependent on the deceased immediately before his or her death.25 However, in Western Australia, the provision is limited to ‘those things immediately necessary for the maintenance’ of dependants.25 Queensland and Victoria have a similar provision, except that it is limited to providing for a spouse or any child of the deceased and provides for maintenance or support only.26 Although the legislation does not limit the amount that may be provided for these purposes, it is our view that any sum so provided must be reasonable and necessary in all the circumstances. 5.

In Queensland, the Qld Act s 44(2) enables a distribution to be made where an applicant or entitled applicant (being of full age) consents in writing to it. However, the section only protects the [page 330] personal representative from an action by the applicant or entitled applicant who so consents. Accordingly, care should be taken to ensure that at the time the distribution is made, the rights of no other person may be adversely affected by the distribution. In practice, no distribution would be made within six months of the date of death and after that no distribution would be made without the written consent of those who have made or given notice that they intend to make an application. Section 94 of the NSW Act is in similar terms. An applicant who intends to apply or has applied for a

family provision order and who advises the personal representative in writing that he or she consents to the distribution or does not intend to make any application under Ch 3 that would affect the proposed distribution, cannot thereafter bring an action against the personal representative because of the distribution.

Duty to uphold the will or distribution on intestacy 6.6 The personal representative’s primary duty is to uphold the will27 or distribution on intestacy, as the case may be. Accordingly, the court should grant an adjournment, if requested, to give the personal representative a reasonable time to obtain necessary information to place before the court.28 In the exercise of this duty, the personal representative must either compromise or oppose the application,29 but his or her actions must not reach the stage where they are of no commercial benefit to those involved.30 As has been noted in 3.8, this is of special relevance in small estates. If it is decided to oppose the application, that opposition must be real. It is not sufficient merely to advise the court of the assets and liabilities in the estate and submit to the order of the court.31 The result of such an attitude is to force the beneficiaries to seek separate representation and, if this happens, the personal representative has acted improperly32 and he or she runs the risk that his or her costs will not be allowed.33 If, however, all the beneficiaries are separately represented, the personal representative’s duty is to provide the court [page 331]

with all necessary information34 but otherwise to avoid unnecessary costs, and this may require leaving the conduct of opposition to the application to the beneficiaries. The necessary information includes: 1.

any particular circumstances which the court should take into consideration relating to any particular gift in the will;35

2.

any information justifying the deceased’s conduct towards the applicant in excluding him or her or limiting any benefit;36

3.

the deceased’s reasons, if any, for making or not making provision for any person;37

4.

details of the assets and liabilities of the estate;38 and

5.

the financial position and needs of a beneficiary.39

In respect of the latter evidence, it has been said that an application cannot be properly heard until it has been obtained.40 The relevant evidence required is that which is contrary to the applicant’s case. However, the opposition should be conducted upon the true facts and there is a serious argument supporting the proposition that the court should be fully informed even if this requires the personal representative to provide evidence of positive assistance to the applicant. In Dijkhuijs v Barclay,41 Kirby P referred to the obligation on the personal representative to place before the court all evidence which is relevant ‘whether positively or negatively’. It is only in this context that the proposition advanced by Davern Wright,42 that a personal representative ‘should maintain an entirely neutral position and submit to the order of the court’, can be supported. However, in South Australia, a personal representative is required by the Rules of Court to act in a neutral manner.43 As discussed elsewhere,44 the authority given by that learned author to support the proposition per se does not

do so in our view45 and, as a direct statement of principle, apart from South Australia, it is not otherwise supported in Australia. Evidence contrary to the interests of the applicant’s case is often provided by the beneficiaries under the will or intestacy and the [page 332] personal representative must place such evidence before the court unless he or she believes it to be false. However, an aggressively partisan attitude in favour of a particular beneficiary against an applicant or other beneficiaries in some circumstances may constitute misconduct which may be punished by a partial denial of costs.46 The duty to oppose an application obliges the personal representative to prepare and file affidavits on behalf of the beneficiaries who are not separately represented.47 As a party to the application, the personal representative is there to do what the beneficiaries may require,48 short of providing evidence or supporting allegations he or she believes to be false. In summary, it would seem that the representative’s duty to oppose an application is not so much to act as an antagonist to the applicant, but it is part of the duty, considered in detail in the next paragraph, to assist the court by ensuring that the position of the beneficiaries under the will or intestacy is fully presented.

Duty to assist the court generally 6.7 The placing of relevant evidence before the court, as mentioned above, can be seen in terms of the more general duty to assist the court.49 In our view the general duty to assist the court should extend to all of the matters required of a personal

representative under s 11A of the Family Protection Act 1955 (NZ), although this provision has not been enacted elsewhere. In part, the provision is a statement of the general law that a personal representative in these actions must inform the court of the financial affairs of the estate. This is discussed in 6.11. However, s 11A reposes a further duty on the personal representative — to place before the court all relevant information in his or her possession concerning the deceased’s reasons for making the dispositions made by the will or for not making any provision or any further provision, as the case may be, for any person. The personal representative is excused from providing the latter information if he or she is under an obligation not to disclose such information and disclosure in connection with any application under the Act would be a breach of that obligation.50 [page 333]

Duty as to separate representation 6.8 This duty is concerned with the question of whether beneficiaries should be separately represented from the personal representative in an application and, if so, when such representation is appropriate. The approach of the courts is that separate representation is permitted in special circumstances but, as a general rule, it is ‘unwelcome’.51 Only two ‘special circumstances’ have been recognised by the courts: 1.

where the executors, who are themselves beneficiaries under the will, wish to apply;52 and

2.

where very substantial beneficiaries.53

benefits

are

conferred

on

A third possibility is where there is a conflict of interest between beneficiaries.54 Clearly, by acting as personal representative, a person does not prejudice his or her right to make a claim under the legislation.55 But if there is a co-executor or co-administrator, the latter must perform the duties of the personal representative in these applications.56 In New South Wales, where one of two or more executors wishes to apply for a family provision order, the proper course is for that executor not to be named as a defendant in the family provision proceedings.57 A beneficiary who elects to be separately represented where there are no special circumstances runs the risk of not being allowed his or her costs out of the estate.58 In the Queensland case of Re Sharp59 it was said that it was most important that all parties who might be prejudiced or benefited by an order should have an opportunity, where it is reasonably possible, of being heard on the application. However, this remark must now be read in the light of the current practice direction of the Queensland Supreme Court, which requires the personal representative to advise beneficiaries that, if parties whose interests are identical are separately represented, one set of costs only may be allowed or costs of any such party may be refused.60 [page 334] In South Australia, the Supreme Court Rules allow for one person to be both a plaintiff and a defendant,61 and thus the practice mentioned above does not apply in that state.

Duty of a personal representative acting in

different capacities 6.9 Although the general rule is that the personal representative is required either to compromise or oppose a claim, other considerations apply where he or she is required to act in different capacities. In such circumstances, the personal representative should apply to the court for directions or obtain separate representation of the parties and maintain a neutral position. In Re McCarthy,62 the Public Trustee was the executor of the will, the beneficiaries were two infant children and the applicant was a widow who was a patient in a hospital for the intellectually disabled. The Public Trustee was the manager of the widow’s affairs and was attempting to act as guardian ad litem63 for the infant beneficiaries. The proper course for the Public Trustee was to apply to the court for directions. It was said that there should be a next friend64 for the widow and a separate guardian ad litem for each child. The Public Trustee was then expected to take an inactive role in the proceedings and to submit to the judgment of the court. This case has been quoted as authority for the proposition that a personal representative should maintain a neutral position,65 but that particular result must be seen in the light of the facts in that case.

Duty of counsel for the personal representative 6.10 1.

The duty of counsel for the personal representative is:

to present all the facts and arguments which will enable the court satisfactorily to discharge its duty, except where the beneficiaries are separately represented and those beneficiaries are opposing the application;66 and

2.

to assist the court generally.67 [page 335]

It will be recognised that the above duties are in effect restatements of duties which are cast on the personal representative. However, in Re Newell68 the court was concerned to emphasise the point that counsel must do more than read affidavits filed by the personal representative in compliance with his or her obligations.

Duty to inform the court of the details and value of the estate’s assets and liabilities 6.11 The personal representative is required to inform the court on affidavit ‘as to the nature and subsequent disposition of estate assets’69 at the date of death. In some jurisdictions the rules of court specifically require the personal representative to file evidence about the assets and liabilities of the estate.70 A second affidavit updating the position as at the time of the final hearing is usually also required. In New South Wales, the personal representative is under a duty to provide precise details of the nature and value of the deceased’s estate at the date of death and at the date of hearing.71 Where the applicant gives accurate details of estate assets and exhibits a copy of the will in the affidavit supporting the originating proceedings, the personal representative only need file one affidavit before the final hearing. In some cases, where an initial affidavit has been filed by the personal representative, a second affidavit may be unnecessary, for example, where the estate consists solely of cash, and the date

between the filing of the affidavit and the final hearing is relatively short. One problem can be obtaining valuations for non-cash assets in the estate. There is no hard and fast rule that a personal representative must obtain a valuation from a registered valuer in every case, and directions may be sought at a directions hearing. In the case of realty, an estimate from a real estate agent may be sufficient if all parties agree that the estimate is correct. If the parties cannot agree on the property’s value, a valuation from a registered valuer may become necessary. [page 336] The true value of the estate is a matter of fundamental importance in every application72 and an out-of-date valuation is unsatisfactory.73 In such a case, the court may order that an up-todate valuation be obtained and for that purpose may make ancillary orders such as authority to an applicant’s valuer or agent to enter the subject property or to inspect books of account.74 The date at which the property should be valued is the date of the final hearing.75 Consequently, where there is a substantial period of time between the date of the valuation and the final hearing, the personal representative must decide whether the valuation obtained needs updating. For example, where the realty is in an area where stable values are normal and the period is less than, say, 12 months, there would normally be no need to file a further affidavit from the valuer unless there is some reason to believe that values have changed significantly over that time. As the period reaches two or three years, as occurred in Blore v Lang,76 a fresh valuation is virtually a necessity. The personal

representative should try to obtain agreement from all parties as to these matters in order to avoid costs where possible. In the case of personalty, if the parties cannot agree on the value, the personal representative must obtain a valuation from an expert. In New South Wales, Schedule J of the Supreme Court Rules prescribes what must be included in the personal representative’s affidavit. Practice Note No SC Eq 7 in New South Wales,77 provides,78 inter alia, that unless the court orders otherwise or reasonable notice is given that strict proof is necessary, a kerbside appraisal of real property by a real estate agent satisfies the evidentiary requirements of valuation of real estate in that state. Failure by a personal representative to place full details of the assets and liabilities before the court may result in an adverse costs order against that personal representative.79

Duty of personal representative in small estates 6.12 Because of the impact of costs on small estates, the courts have been urging legal practitioners who are acting in small estates to make [page 337] an extra effort to reach a compromise at an early stage.80 If this is not possible, the matter should reach the court before costs make it difficult or impossible for the court to make an order. Such a situation occurred in Manning v Matsen81 where the estate had assets of $65,572 and the executor’s costs were $59,190. This duty

was enunciated by McMeekin J in Collett v Knox,82 a small estate case, as follows: As a general proposition I consider it accurate to assert that before embarking on expensive litigation the executors need to give careful consideration to what amounts they will expend and how best they should discharge their duties. Resort to generalisations that executors are entitled or obligated to uphold the will may provide no guidance at all in some cases. In my view this is such a case.

That the executors have an obligation to consider the impact of costs on the estate was said to be ‘unimpeachable’ in Underwood v Sheppard.83 The reason is that executors bear a fiduciary duty to which they must have regard in conducting litigation affecting the estate.84 Defending a family provision claim is the lot of the personal representative and in view of the remarks expressed above, it can be said that the personal representative is under a duty in small estates to reach an early compromise of the application or to take steps to have it brought before the court as soon as possible.

Multiple applications 6.13 Where one person has made an application to the court, the legislation of all jurisdictions, except New South Wales and Victoria, provides for either of the following: 1.

for the purposes of limitation periods, the application may be treated as one on behalf of all persons who might apply;85 or

2.

the court may permit the joinder of other applicants,86 but in Tasmania the court is unlikely to permit joinder if other applicants apply out of time and their case has poor prospects of success.87

In New South Wales,88 the court may disregard the interests of a potential applicant (referred to as an ‘eligible person’) if notice of the application and the court’s power to disregard that person’s

interests have been served on that eligible person in the manner and form prescribed by the rules of court. [page 338] In Queensland, Practice Direction No 8 of 2001 obliges the giving of notice of the application to all potential applicants.89 In Victoria, the practice is that all applications will be heard together. When directions are given, the court may direct that all beneficiaries whose entitlements under the will or intestacy might be affected by any order in favour of the applicant are to be given notice, and the opportunity to apply to be added as defendants in the proceeding. No such notice is directed to be given to persons who might be potential applicants for family provision. When the application comes on for hearing, the sixmonth limitation period has always elapsed, and no regard is paid to the interests of a potential applicant. Where there is more than one application, it is clearly in the interests of all parties that the applications be heard together. Accordingly, when an application has been made, the personal representative should notify other potential applicants of the existence of the application to avoid possible duplication of evidence and with a view to keeping costs to a minimum.90 However, in South Australia, the claimant is required to notify all other potential claimants.91 In jurisdictions where joinder is automatic,92 it is even more important that the personal representative notify other potential applicants. Otherwise, those applicants may not be entitled to recover their filing costs out of the estate and at some stage an application for consolidation of the applications must be made.

Where persons under a disability have been left without adequate provision 6.14 In some circumstances and in some jurisdictions, a personal representative may apply on behalf of a person under a disability. This matter is discussed in 7.28.

Where beneficiaries are under a disability 6.15 It is appropriate in all cases where the beneficiaries are persons under a disability that a litigation guardian93 be appointed to protect their interests. During the period before the appointment is made, the [page 339] personal representative has the responsibility which would otherwise repose in the litigation guardian.94 As mentioned in 7.29, where no one is willing to act, or capable of acting, as litigation guardian, the court could appoint the personal representative, a solicitor or the local Public Trustee as the litigation guardian. The duties of a litigation guardian in these applications are discussed in 7.31.

Duty of personal representative on appeal 6.16

This duty is discussed in 9.9.

_______________________

1.

Re Simson [1950] Ch 38 at 43; Re Jones [1978] VR 272.

2.

Re Gimblett [1960] NZLR 664.

3.

Re Simson [1950] Ch 38 at 42; cited with approval in Re Gough (1973) 5 SASR 559 at 566.

4.

Re Crowley [1949] St R Qd 189 at 192; Re Faulkner [1999] 2 Qd R 49 at 53.

5.

Packo v Packo (1989) 17 NSWLR 316; Re Gough (1973) 5 SASR 559. See also Davern Wright, p 164.

6.

Guardian Trust and Executors Co v Public Trustee NZ [1942] AC 115 at 127. See also Re Simson [1950] Ch 38; [1949] 2 All ER 826; Re Winwood [1959] NZLR 246; Re Gimblett [1960] NZLR 664, where an executor has been said to make such a distribution at his or her own risk; and Hansen v Hennessy [2014] VSC 115 where the executrix/residuary beneficiary treated estate funds as her own.

7.

Re Hill (SC(Qld), Carter J, OS No 1079/87, 17 June 1988, unreported).

8.

Re Faulkner [1999] 2 Qd R 49.

9.

See NSW Act s 93(2)(a).

10.

See NSW Act s 93(2)(b).

11.

[1999] NSWSC 468.

12.

Ibid at [57].

13.

But without the additional provisions of s 93(2)(b) of the NSW Act.

14.

See Re Gimblett [1960] NZLR 664 at 666.

15.

See Supreme Court Registrar, Equity Division v McPherson [1980] 1 NSWLR 688.

16.

For a discussion of what constitutes notice of a claim, see 5.4.

17.

That is, calling on creditors to give notice of their claim: see H A J Ford and W A Lee, Principles of the Law of Trusts, 3rd ed, Law Book Co, Sydney, 1996, [16300].

18.

Ibid.

19.

Sadler v Public Trustee [2009] NZCA 364.

20.

Robbins v Hume [2015] VSC 128.

21.

Re Simson [1950] Ch 38 at 43.

22.

Re Ralphs [1968] 1 WLR 1522 at 1525.

23.

Ibid.

24.

ACT Act s 20(2); NT Act s 20(2).

25.

WA Act s 11.

26.

Qld Act s 44(1); Vic Act s 99A(1).

27.

Re Burton [1958] QWN 27; Re Klease [1972] QWN 44. This duty is sometimes expressed in terms of the personal representative being ‘the defender of the will’:

Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503; Dijkhuijs v Barclay (1988) 13 NSWLR 639 at 654. 28.

Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 504.

29.

Re Lanfear (1940) 57 WN (NSW) 181; approved in Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503.

30.

Szlazko v Travini [2004] NSWSC 610.

31.

Re Newell (1932) 49 WN (NSW) 181; Re Klease [1972] QWN 44.

32.

Re Lanfear (1940) 57 WN (NSW) 181 at 183.

33.

Only one set of costs was allowed on appeal in Re Blyth [1959] NZLR 1313.

34.

Re Hall (1959) SR (NSW) 219 at 226; Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503.

35.

Re Lanfear (1940) 57 WN (NSW) 181 at 183.

36.

See 2.34–2.44.

37.

See 7.11–7.15.

38.

Discussed in 6.11.

39.

Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 504.

40.

Ibid.

41.

(1988) 13 NSWLR 639 at 654.

42.

Davern Wright, p 43.

43.

Rule 315(d).

44.

See 6.9.

45.

This view has also been expressed by Wylie J in Re Matthews (1987) NZ Recent Law 289 at 290.

46.

Re Hall (1959) SR (NSW) 219 at 226.

47.

Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503; Dijkhuijs v Barclay (1988) 13 NSWLR 639 at 654.

48.

Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 504. See also the remarks of Campbell JA in Tchadovitch v Tchadovitch (2010) 79 NSWLR 491 at [14]; NSWCA 316 at [14].

49.

Re Newell (1932) 49 WN (NSW) 181; Re Pope (1975) 11 SASR 571.

50.

Family Protection Act 1955 (NZ) s 11A.

51.

Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503.

52.

Re Burton [1958] QWN 27; Re Lanfear (1940) 57 WN (NSW) 181 at 183.

53.

Re Lanfear (1940) 57 WN (NSW) 181 at 183; Re Bowcock [1968] 2 NSWR 700 at 704; Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503.

54.

Davern Wright, p 45.

55.

Re Mitchell (1941) 42 SR (NSW) 19; Re Gilmore (1963) 5 FLR 371 at 378.

56.

Ibid.

57.

O’Brien v McCormick [2005] NSWSC 619.

58.

Re Lanfear (1940) 57 WN (NSW) 181; Fox v Burvill (1955) 29 ALJ 414; Re Burton [1958] QWN 27.

59.

[1923] St R Qd 102 at 106.

60.

Practice Direction No 8 of 2001, para 8.

61.

Rule 314(10).

62.

[1919] NZLR 807.

63.

Now generally referred to as a ‘litigation guardian’: see 7.28 and 7.29.

64.

Ibid.

65.

Davern Wright, p 43, but see now Re Matthews (1987) NZ Recent Law 289 at 290.

66.

Re Newell (1932) 49 WN (NSW) 181 at 182.

67.

Ibid; see also Davern Wright, p 43 and Cook v Webb [1918] GLR 282. Whether counsel for the executor actually assisted the court in that case is debatable. On appeal, [1918] NZLR 664; [1918] GLR 457, the trustees submitted to the order of the court. However, they did make a suggestion as to the form of the order.

68.

(1932) 49 WN (NSW) 181 at 182; see also Re Klease [1972] QWN 44.

69.

Re Hodgson [1955] VLR 481 at 487; Williamson v Williamson [2011] NSWSC 228 at [79]; see also Re Simson [1950] Ch 38 at 44.

70.

See Supreme Court Rules 1970 (NSW) Pt 77 r 59 and Supreme Court Practice Note SC Eq 7 — Family Provision. This is considered in greater detail in Chapter 8; Qld Practice Direction No 8 of 2001, para 11; Supreme Court Rules 2006 (SA) r 315(a).

71.

Fiorentini v O’Neill [1998] NSWCA 79; Faulkner v McLeod [2011] NSWSC 92.

72.

Blore v Lang (1960) 104 CLR 124 at 138; McKenna v Solomon (1995) DFC 95-157.

73.

Blore v Lang (1960) 104 CLR 124 at 136; Goodman v Windeyer (1980) 144 CLR 490; 54 ALJR 470 at 478.

74.

Re Propsting [1955] QWN 18.

75.

Re Borthwick [1948] Ch 645 at 651; [1948] 2 All ER 635 at 637.

76.

(1960) 104 CLR 124.

77.

Dated 2 December 2013.

78.

At para 21.

79.

Kembrey v Cuskelly [2008] NSWSC 262 at [64].

80.

See 3.8.

81.

[2015] NSWSC 1801. For the costs order see [2016] NSWSC 70.

82.

[2010] QSC 132 at [166].

83.

[2010] QCA 76 at [16].

84.

Ibid.

85.

ACT Act s 8(4); NT Act s 8(4); Qld Act s 41(6); WA Act s 12(2).

86.

SA Act s 8(7) and SC Rules 314(4) and (5); Tas Act s 3(4).

87.

West v West (1996) 5 Tas R 392.

88.

NSW Act s 20.

89.

See Qld Practice Direction No 8 of 2001, para 8.

90.

Re White (1932) 49 WN (NSW) 178.

91.

SC Rule 314(2).

92.

ACT, NT, Qld and WA.

93.

See 7.29. In NSW and WA such persons are represented by a tutor and guardian ad litem respectively.

94.

Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 504, where this duty is implied at line D.

[page 340]

7

Miscellaneous Considerations Introduction

7.1 In dealing with family provision applications there are inevitably miscellaneous considerations that warrant comment but which do not naturally arise from the discussions in earlier chapters. Some are formative only or rarely require attention while others, such as taking account of taxation issues affecting the estate, always must be kept in mind.

Applicant’s obligation to the court 7.2 An applicant has an obligation to place before the court as fully and as frankly as possible all information concerning the applicant’s financial and material circumstance.1 Failure to do so may result in dismissal of the application.2 In other words, the applicant must be able to persuade the court that it has been presented, at least in broad outline, with the whole picture concerning the applicant’s financial situation.3 In one case it was said that, where an applicant is living with a spouse or partner, the applicant’s obligation extends to the financial

[page 341] and material circumstances of that spouse or partner.4 Given that the spouse or partner may have withheld detailed information from the applicant in the past and may choose not to volunteer it in the application, it does not follow that this information will always be obtainable. Whether this view has widespread judicial acceptance remains to be seen. It may well be that the extent of the applicant’s obligation depends on the circumstances of the case.

Jurisdiction 7.3 Except in South Australia, the court of the deceased’s domicile is the only court which can make a family provision order covering a deceased’s movables and immovables in the territory of the domicile.5 The same court may make orders which operate on the deceased’s movables situated out of the jurisdiction of the domicile6 although, in practice, it is unlikely that a court would make an order, the supervision of which it had no power to control.7 Accordingly, it may be expected that a court would confine its orders to property within the jurisdiction.8 Where doubt as to the deceased’s domicile exists, the onus lies on the applicant to prove that the deceased had a particular domicile.9 Evidence relating to domicile should be included in the applicant’s affidavit filed in support of the application if doubt as to domicile exists. The court may make orders affecting immovables within the jurisdiction10 even though there are no movables within the jurisdiction.11 It will not make an order affecting movables within the jurisdiction if the deceased is domiciled outside the jurisdiction.12

[page 342] In South Australia, jurisdiction exists where a person has died domiciled in the state or owning real or personal property in the state. However, if the court considers that it would be more appropriate to have the application heard outside the state, it may refuse to make an order or may adjourn the application.13 The court of the deceased’s domicile has no power to make orders dealing with immovables situated outside the jurisdiction.14 However, s 64 of the NSW Act gives the New South Wales court power to make a family provision order affecting succession to immovable property outside New South Wales of a testator who dies domiciled in New South Wales and movable property within New South Wales of a testator who dies domiciled outside New South Wales.15 While the court cannot make orders affecting immovables situated outside the jurisdiction, it will take into account the existence of such assets and the persons entitled to them when making any orders.16 The domicile of the applicant is irrelevant to the question of the court’s jurisdiction to hear an application.17 It has been suggested that income from real property outside the jurisdiction is personalty in the hands of the executor which, being a movable, allows the court to include such income in any orders that may be made.18 The correctness of this view has been doubted on the basis that it does not accord with the general principles of this area of the law.19 For some years, a debate existed on whether moneys secured on real property situated outside of the jurisdiction fell within the jurisdiction of the court.20 The current position is that they do.21

[page 343]

Construction of the will in family provision applications 7.4 It sometimes happens that difficulties with the construction of the will arise in family provision applications. Indeed, there are occasions when a wrong interpretation of the will by the executor actually causes a beneficiary to make a family provision application.22 Where there are construction difficulties, the question arises: should the court deal with the construction issue as part of, or at the same time as, the family provision application or should it adjourn the family provision application to allow the construction issue to be decided in separate proceedings? In Re Debono23 the decisions in Re Davis and Re Langley were considered and it was concluded that the question of whether the two issues should be decided in one or two proceedings is to be answered having regard to the particular situation, including whether the parties are mainly the same and the complexity of the interpretation in issue. Some judges have construed the will in family provision applications without considering the propriety of such a course of action.24 Some have considered but not decided the construction question in the family provision application.25 Others have considered the propriety of dealing with both issues together and have come to different conclusions. The argument in favour of deciding the construction question as part of the family provision application is that the Judicature Act 1876 (Qld) has as one of its objects the avoidance of a multiplicity of legal proceedings between the same parties.26 If all

parties affected by both issues are before the court and consent, it is proper for the court to decide them in the family provision application.27 However, in Clifford v Mayr,28 Young JA expressed the view that, in order to determine how estate assets devolve on death, one must construe the will before one can proceed to consider the application. The argument against deciding both issues in the family provision application is that that [page 344] procedure is inappropriate and the construction question should be decided in separate proceedings.29 There does not appear to be a prevailing view on this matter. The result in a given case is likely to depend on whether the construction question goes beyond the family provision question and the parties. If there are discrete questions that would mean parties to the construction question would have to await the family provision part of the proceedings, or vice versa, then it is more convenient to separate them.

Contract to leave property by will 7.5 A person may enter into a contract to leave property to another by his or her will and generally it will be enforced by the court as appropriate.30 The typical situation is where the offer of such a contract is an inducement to a housekeeper to act as such for the person without wages until the person’s death.31 Other examples found in the cases involve contracts entered into with the person’s children32 or de facto spouse.33 Still another is in the case of a contract for mutual wills. In New South Wales, reference should be made to the court’s

power over notional estate of the deceased34 and in particular to ‘relevant property transactions’ described in the NSW 1982 Act s 75. These provisions impact upon the general law discussed in this paragraph. In the context of a family provision application, the issue is the effect which should be given to such a contract where it conflicts with the rights of an applicant. 7.6 Those who contend that the promisee’s contractual rights are subject to the rights of an applicant argue that, once the will has been executed by the testator or testatrix in accordance with the contract, the contract is at an end and the promisee takes as a beneficiary. Accordingly, the court may deal with that beneficiary’s entitlement under the will, notwithstanding the existence of a contract with regard [page 345] to that entitlement.35 This is sometimes referred to as the ‘beneficiary’ theory.36 Those who contend that the promisee’s contractual rights are not subject to the rights of an applicant argue that the promisee’s rights do not arise under the will but are pursuant to the contract. The contract is then said to operate as an alienation by the vendor of his or her equitable interest in the property.37 This is sometimes referred to as the ‘creditor’ theory.38 7.7 For many years, the question appeared to have been settled by Dillon v Public Trustee NZ39 in favour of the beneficiary theory. However, in Schaefer v Schuhmann,40 the Privy Council changed its opinion, with the majority of the Law Lords determining the issue in favour of the creditor theory. They took the view that the

power to interfere with such contractual dispositions should be given by legislation rather than by the courts.41 It should be noted that Lord Simon of Glaisdale wrote a strong dissenting opinion. Lord Simon took the view that there were several obligations to which legal effect must be given. One of these was a contract entered into by the testator or testatrix. Another was the obligation of a testator or testatrix in respect of property held by him or her as trustee. A third was the obligation of a testator or testatrix to provide for dependants. He could see no reason why any one was greater than the other and that, if the matter were dealt with by the court, justice would be done so far as possible for all concerned. In effect, Lord Simon was reiterating the beneficiary theory. 7.8 The High Court considered both Dillon v Public Trustee NZ and Schaefer v Schuhmann in Barns v Barns42 and followed the reasoning in Dillon. Schaefer v Schuhmann is therefore no longer of any relevance in Australia. Thus, an agreement to execute mutual wills or indeed [page 346] any contract to leave property by will does not operate to prevent a family provision claim by an eligible applicant. Barns v Barns is also relevant for its discussion of how the High Court deals with two inconsistent decisions of the Privy Council when that court was part of the Australian legal system.

Evidence Evidence generally by affidavit

7.9 The general practice in all jurisdictions is that evidence is given by affidavit both in chief and in reply43 and, as Wild CJ said in Re Meier,44 ‘in other than exceptional cases, cross-examination is neither necessary nor desirable’. His Honour went on to add:45 In this case the requests no doubt arise out of the acrimonious note introduced into some of the earlier affidavits which mounted as the exchanges continued. Though conduct and family relationships may, in some cases well have relevance, I think it appropriate in this case to recall that from the early days of family protection jurisdiction the court has disapproved attempts by litigants to blacken each other’s character — See, for example Hoffmann v Hoffmann (1909) 29 NZLR 425, 428 per Sim J. Allegations and counter-allegations about petty incidents which occurred years before the date of death are generally unlikely to advance anyone’s case and when, as in this case, it is sought to support them by affidavits from neighbours they may merely deepen rifts in the family and dishonour the memory of the testator. Counsel and solicitors bear a responsibility to their clients as well as the court in this respect.

Medical evidence 7.10 Medical evidence of any health problems of the applicant relevant to the application should be provided.46 If further treatment is under consideration, the proper course is to adjourn the application until evidence of such further treatment can be obtained.47 [page 347]

Deceased’s reasons for testamentary dispositions48 7.11

It is quite common for respondent personal representatives

and/or beneficiaries to put before the court statements of the deceased as to the reasons why the will was made as it was. Sometimes, the person giving instructions for his or her will may wish to do this either by making a statement in the will itself49 or by making it in a separate document usually placed with the will.50 More commonly, the statement will be an oral statement made to some close friend or relative.51 Occasionally, it will be a transcript of evidence given by the deceased prior to death at a judicial hearing,52 often an application for maintenance by the spouse.53 The Australian Capital Territory, New South Wales, the Northern Territory, Tasmania and Victoria have specifically legislated for the admissibility of such evidence.54 In the other jurisdictions, there is only the general provision for the admission of certain statements of a deceased person,55 which may be of limited utility in this context. South Australia provides for the perpetuation of testimony in relation to any matter which would be relevant under the Inheritance (Family Provision) Act 1972.56 This would allow a person making a will, who wishes to exclude someone who might otherwise have expected to [page 348] benefit under the will, to make a statement before the court giving the reasons for such exclusion.

Basis of admissibility (in the absence of specific legislative provision)

7.12 There has been considerable judicial vacillation concerning the basis of admissibility of the deceased’s reasons for his or her testamentary dispositions. Most judges have taken the view that the court is entitled to know why the will was made as it was, the rationale being that it is a circumstance that must be taken into account if the court is to do its duty properly.57 Another rationale advanced has been that the deceased is likely to have had a valuable opinion as to what, in a particular case, is proper maintenance and support for those who are dependent on him or her.58

Suggested limitation 7.13 In Re Paulin59 the view was expressed that such evidence is admissible only if it is directed to facts negating moral claim or to conduct disentitling and which call for an explanation by the applicant.60 This view has been described as an unsuccessful attempt to reconcile the differences of view which attend this subject,61 and was further criticised in Hughes v NTE&A.62 Another suggested limitation is found in Re Hall,63 where Harvey CJ in Equity held that evidence of statements made by a deceased should be limited to evidence which testifies directly and not merely by inference to the state of the deceased’s mind which prompted the drawing of the will in the form in which the will was ultimately executed. In Re Taylor64 this was said to be an eminently sensible limitation of the rule.65 However, support for such a limitation has not been forthcoming.66 [page 349]

Current position

7.14 Whatever the basis of admissibility of such evidence, the High Court of Australia held in Hughes v NTE&A67 that ‘usage justifies its reception’.

Relevance of the deceased’s reasons 7.15 Where such statements are admitted by legislative provision, the terms of the legislation indicate the purposes to which the statement may be put. However, in jurisdictions where admissibility relies on case law, evidence of such statements cannot be tendered to prove the truth of the facts stated in them. It is admitted only as original evidence of the deceased’s reasons:68 to prove the reasons which actuated the deceased in making his or her will.69 In Hughes v NTE&A,70 the High Court of Australia approved the following remarks of the Court of Appeal of New Zealand in Re Green:71 If reasons are given by the testator reflecting on the character or conduct of that child, the court must, in considering the sufficiency or otherwise of the reasons, endeavour to decide upon the truth or otherwise of the allegations. But the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting a claim. In our opinion, the reasons given by a testator for excluding a child (or a widow) go no further than to concentrate attention on the question whether there is or has been character or conduct operating to negative the moral obligation that would otherwise have lain upon the testator. If the court is quite unable to arrive at the truth or falsity of the allegations,

[page 350] so that they must be regarded as neither proved nor disproved, but merely unproven, then sub-s 2 of s 33, which authorizes the court to ‘refuse to make an order in favour of any person whose character or conduct is such as in the opinion of the court to disentitle him or her to the benefit of an order’, has no application.

One common reason given by a deceased for making little or no provision for an adult child is that he or she had a profound dislike of the spouse of that child. On principle, that reason carries no weight with the court. As Holland J said in Kleinig v Neal (No 2):72 A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations are not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent’s hopes and expectations concerning his child will be accepted by the wise parent as being almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life.

Indeed, it has been said that penalising a child because of that child’s marriage amounts to a failure of moral duty to the child73 and is generally ignored by the court.74 However, if the dislike is based on some aspect of the character of the son or daughter, such as an inability to handle money, and there is evidence of this, the form of order may be affected. For example, in Perkins v Perkins,75 the daughter-in-law’s inability to handle money was not disputed. The son was said to be a trustworthy person who could handle money, but it was feared that his wife might obtain his passbook, forge his signature and withdraw funds. The order was that the son receive $30,000 and that he be given a power of direction in a further $60,000 to be held by the trustee of the will. In practice, an applicant should answer evidence as to the deceased’s reasons for making the will as he or she did.76

Effect of divorce settlements on family provision applications

7.16 Examples of divorce settlements which prima facie exhausted an applicant’s claim for provision out of a deceased’s estate were [page 351] considered in Re Fullard77 and O’Shaughnessy v Mantle.78 In these cases, such settlements were taken into account in considering the family provision application and in both cases the applications were dismissed. However, if there is evidence, for example, that the value placed on a contingency79 proves to be substantially higher at the date of death than was estimated at the date of settlement, the court may order further provision for the applicant.80 For a discussion of the constraints on contracting out of the right to bring a family provision application, see 2.46–2.47. Any attempt to restrict parties to a family law dispute from bringing an application after the death of a party should be considered in the light of that discussion. In most cases, a final property settlement would be seen by the parties as terminating any moral claim of a former spouse to provision in the will of the other,81 and there are cases where the court has assessed that claim at nil.82 O’Shaughnessy v Mantle83 contains a useful, but necessarily nonexhaustive, list of the types of cases in which the court could be expected to make some provision for an applicant, notwithstanding a divorce settlement. They are where: 1.

There has been a divorce and a spouse has died before property matters have been resolved by the Family Court.

2.

The husband and wife have not finally settled their property

dealings at the time of their divorce. 3.

Maintenance was being paid to the ex-spouse as at the date of death and the orders for maintenance were inadequate to provide for the ex-spouse after the death of the paying spouse.

4.

Despite the divorce, there was some dependence on the deceased at the date of death.

5.

A special factor is involved, for example, where the family property was small and the maintenance ordered was low because of this fact. On the death of one spouse, there would no longer be any barrier to giving the whole of the family property to the surviving spouse. [page 352]

The types of cases referred to in point 3 above would be the most common of those referred to.84 A further possible addition to the list is the case where the estate has increased substantially after the date of the property settlement and the period between then and the date of death is relatively short. An example would be where a superannuation payment is considerably greater at the date of death than at the date of the Family Court’s hearing, because of salary rises after the Family Court hearing and changes in the multiplier used to determine the final amount.85 In such a case, the court may consider the property settlement was too low and thus some further provision for the survivor may be justified. As indicated, in the majority of cases the divorce settlement would effectively destroy any claim for provision out of the estate of either party on the death of the other party — it does not destroy the claim as a matter of law but as a result of the practical

effect of the settlement on the claim. However, as the courts can and do make provision for applicants in this situation, the possibility of a party to a divorce becoming an applicant should be considered when looking at questions such as who should be served with an application and who should be a party to any deed of compromise. Of course, in Queensland, Tasmania and Western Australia, if the applicant is not receiving or entitled to receive maintenance (that is, entitled by virtue of a court order or an enforceable agreement), no claim can be made.86 In the Northern Territory, to be entitled to apply, a former spouse or de facto partner must have been maintained by the deceased immediately before his or her death.87 This is the position even though on other grounds it might be said that the divorce did not terminate a moral claim which an applicant might have. In Queensland and Tasmania, the applicant also must not have remarried.

Settlement considerations 7.17 The prospect of settling a family provision application should always be pursued. Some of the more obvious matters which must be addressed are that: 1.

relevant, up-to-date valuations are being relied upon;

2.

the settlement agreement clearly covers all relevant issues, including identifying who is responsible for conveyancing costs and the like; [page 353]

3.

all revenue implications of the proposed terms have been considered; and

4.

no party is under a disability preventing the legally binding execution of the settlement agreement. A discussion of issues arising from items 3 and 4 follows.

Revenue implications 7.18 An executor may propose to borrow money to pay out a family provision claim so as to preserve estate assets in their existing forms of investment. Interest on money borrowed in these circumstances is not a loss or outgoing under s 51 of the Income Tax Assessment Act 1936 (Cth). Accordingly, it is not deductible from the estate’s assessable income.88 Other matters which warrant consideration in this context include stamp duty and capital gains tax.

Stamp duties 7.19 Legislation in all jurisdictions provides that the order takes effect as either: a codicil to the will or, in cases of intestacy, either as an amendment to the intestacy rules or as if there had been a will;89 or a codicil or amendment to the intestacy rules for duty purposes.90 Some jurisdictions adopt both types of provision.91 New South Wales makes special additional provision with regard to notional estate.92 The effect of this legislation is that instruments executed in accordance with a court order are not dutiable.93 However, where the parties reach a settlement and embody the terms of that settlement in a deed,94 or where an order is made but instruments are executed purportedly in pursuance of the order

but which go beyond the terms of the order,95 such instruments are dutiable at ad valorem rates. It follows that, where all parties are sui juris and have reached a settlement of all claims against the estate, consideration must be given [page 354] to whether the terms will be embodied in a deed,96 which attracts stamp duty, or whether the court will be approached for an order,97 which does not attract stamp duty. The course adopted is likely to be governed by comparing the costs of preparing and executing the deed, together with the amount of duty payable on it, with the costs of obtaining a court order and, in Australia, also possible capital gains tax implications.98 In many cases, it will be appropriate and desirable for the court to be asked to make an order in terms of the settlement reached. However, as a general rule, where the amount agreed upon in settlement of the claim is small, it is likely to be more appropriate to embody the settlement in a deed. Care should always be taken to ensure that the form of the deed does not constitute a resettlement of the estate as a whole and result in ad valorem duty being payable on the gross value of the estate.99 A further consideration is that a deed or settlement agreement may not be approved by the court if the circumstances are not seen to warrant its approval.100 In Re Hatte,101 the Queensland Full Court set aside such an agreement and asserted the court’s right to adjudicate on an application notwithstanding the existence of such an agreement. The agreement reached had been negotiated by the applicant

personally without the benefit of legal representation. One of the judges accepted the possibility that an unfair advantage may have been taken of the applicant by getting him to settle behind his solicitor’s back.102 Other circumstances which may warrant the intervention of the court can be imagined. However, where the parties to the settlement have been legally represented, only the most exceptional circumstances would lead the court to exercise this power. [page 355]

Capital gains tax103 7.20 In either settlement negotiations or in advising the court of the assets and liabilities of the estate, the liability to capital gains tax of the deceased, the estate or a beneficiary should be addressed. While a detailed discussion of capital gains tax is beyond the scope of this text, we will refer briefly to some capital gains tax issues which may arise in practice.

Sale by the personal representative 7.21 Death does not cause a disposal by the deceased (of assets owned by the deceased) for capital gains tax purposes104 so no tax liability is crystallised when property passes to the personal representative. There is also no liability when the same property is transmitted to a beneficiary105 except where the beneficiary is a taxadvantaged entity.106 However, when the personal representative or the beneficiary disposes of an asset which is subject to capital gains tax,107 capital gains tax may

[page 356] be payable. One consequence is that unrealised capital gains on assets acquired by the deceased after 19 September 1985 are ‘rolled’ onto the personal representative or beneficiary and are crystallised when he or she ultimately sells the asset. The relevant conditions for potential liability (in respect of an asset owned by the deceased) are that the deceased must have died on or after 20 September 1985, there must be a disposal108 by the personal representative or a beneficiary of an asset subject to capital gains tax, and there must be a capital gain.

Where the asset was acquired before 20 September 1985 7.22 If the deceased person died on or after 20 September 1985, having acquired a particular asset before that date, and the personal representative sells the asset in the course of administration, he or she is deemed to have acquired the asset at the date of the deceased’s death for a consideration equal to the market value of the asset at that date.109 Accordingly, if evidence of the asset’s market value at the date of death is not available, it may be desirable to obtain a valuation as soon as possible after the date of death.110 If the asset is sold for more than this value, after allowing for indexation, if appropriate,111 and other components of the cost base,112 a capital gain will result113 and tax on that gain may be payable.114 Suppose, for example, that: 1.

In 1970, the deceased had succeeded to vacant land under a will.

2.

At the date of the deceased’s death in 1990, the land had a

market value of $300,000. [page 357] 3.

Because of the particular development plans of a developer, he or she is willing to pay $500,000 for the land.

4.

Three months after the death of the deceased, the personal representative sells the land to the developer for $500,000.

5.

A taxable gain of $200,000, ignoring indexation,115 has been made and the capital gains tax should be taken into account in any settlement negotiations or advised to the court as a liability of the estate, as appropriate. (It is accepted that estimating the tax payable may be difficult.) The following should be noted:

1.

If the property acquired under the will had been a main residence, no capital gains tax would be payable.116 However, if the sale occurred after two years from the date of death, capital gains tax might be payable.117

2.

Indexation may apply, since the sale occurred more than 12 months after acquisition by the deceased.118 The fact that a sale has been made by the personal representative within 12 months of the deceased’s death does not mean that indexation is to be ignored.

3.

It is necessary to consider whether the gain will be assessed to the personal representative or to the beneficiaries and, if so, the beneficiaries to whom it will be assessed.119

Where the asset was acquired after 19 September 1985 7.23

In the case of such a disposal, the asset is deemed to have

been acquired (by the personal representative or beneficiary) for a consideration equal to the amount that would have been the relevant cost base to the deceased if the deceased had disposed of the asset immediately before his or her death.120 Suppose, for example, that: 1.

The deceased bought a house for rental purposes in December 1985 for $150,000. [page 358]

2.

The deceased lets the property until his or her death in December 1991.

3.

At the date of the deceased’s death the house has a market value of $400,000.

If the indexed cost base for the house at the date of death was $250,000, a taxable capital gain of $150,000 would be made if the house were sold immediately for its market value. Now assume that: 1.

The house was effectively the only asset of the deceased.

2.

The deceased left his or her estate to one of two adult children (the beneficiary) and appointed the beneficiary as the sole executor of the will.

3.

It is agreed that the child not provided for under the will (the applicant) has a valid claim to one-half of the estate under a family provision application.

4.

The deceased used the house for a short period as a sole or principal place of residence. Note: the personal representative should consider the prospect of an election under s 118-145.

Should the beneficiary sell the house and, after providing for the capital gains tax and other expenses arising from the sale, pay half the net proceeds to the applicant?121 Alternatively, should the beneficiary seek to keep the house and raise the equivalent of the net proceeds (by mortgaging the house or otherwise) to pay out the applicant’s entitlement? If the beneficiary intends to use the house as his or her sole or principal place of residence, the better course may be to pay out the applicant rather than sell the house for this purpose. The beneficiary may be able to sell the house at a later date with reduced capital gains tax implications122 if the beneficiary in fact uses the house as a sole or principal place of residence for an extended period and the deceased [page 359] used the house as a sole or principal place of residence for some period of time.

Estate left to charity 7.24 Where an asset acquired by a deceased after 19 September 1985 has ‘passed to’ a tax-exempt entity, the normal rule that death does not constitute a disposal (by the deceased) is inapplicable.123 Capital gains tax may arise on a transfer of the asset to the tax-exempt entity because the asset is deemed to have been disposed of by the deceased person and acquired by the taxexempt entity immediately before the death of the person for a consideration equal to the market value of the asset at the date of death.124 Thus, any gain is limited to that which has accrued up to the date of death and will be brought to account by the personal representatives pursuant to their obligations to make up a return

on behalf of the deceased under s 216 of the Income Tax Assessment Act 1936 (Cth) rather than as trustees of the estate created by the will. However, capital gains (or losses) on some testamentary gifts of property are exempted by s 118-60.125

Protection from capital gains afforded by a court order 7.25 A number of the provisions negating disposal on death refer to assets which have ‘formed part of the estate of the deceased’ and which ‘pass to’ the personal representative or beneficiary.126 In relation to assets passing to a beneficiary, s 12820 further defines this as referring to situations in which an asset comes into the ownership of a person as beneficiary: (a) under the will of the deceased person, or that will as varied by a Court order, or (b) by operation of an intestacy law, or such law as varied by a Court order, or (c) because it is appropriated to the beneficiary by the legal personal representative in satisfaction of a pecuniary legacy or some other interest or share in the estate, or

[page 360] (d) under a deed of arrangement if: (i)

the beneficiary entered into the deed to settle a claim to participate in the distribution of the estate; and

(ii) any consideration given by the beneficiary for the assets consisted only of the variation or waiver of a claim to one or more other CGT assets that formed part of the estate.

These provisions allow the rollover relief to apply in situations where a deed of arrangement has been entered into between family members and claimants. This is now in line with the position in the United Kingdom where there is specific provision

for redistribution within a family by correspondence within two years of death.127

deed

or

formal

Other capital gains tax issues 7.26 Some of the other issues which arise in relation to capital gains tax may usefully be noted: If a disposal of assets will be required, assets which will generate a capital loss should be disposed of prior to those which may generate a capital gain, since losses cannot be used to offset gains in a prior tax year and losses at the date of final distribution of the estate are lost. Capital losses on listed collectables may be used only to offset gains from the disposal of other collectables.128 However, general capital losses can be used to offset gains made on the disposal of all assets, including listed and non-listed personal-use assets.129 Losses from personal-use assets cannot be utilised in relation to liability for capital gains tax.130 The wording of the sections specifically directed to deceased estates focuses on assets ‘owned’ or ‘acquired’ by a deceased and which pass to a personal representative or beneficiary.131 These sections are silent in relation to assets which are acquired by a personal representative in the course of administering the estate (which were not assets of the deceased). Where such assets have been acquired after 19 September 1985 and are transferred by the personal representative to a beneficiary, there will be a disposal for capital gains tax purposes (and a potential capital gain). It is likely that the legislation will be administered on the basis that the personal representative will (in such circumstances) be deemed to [page 361]

have received a market value at the time of disposal, although the theoretical position is more complex: Where the personal representative sells an asset (under a power of sale) to a person who is a beneficiary, that sale may crystallise a capital gains tax liability for the personal representative (because the asset does not come into the ownership of a person ‘as beneficiary’).132 Where the personal representative appropriates or distributes an asset (formerly owned or acquired by the deceased) towards the entitlement of a beneficiary, there is no disposal of the asset by the personal representative.133 The legislation is for the most part silent concerning the method by which one analyses interests created under a will (as assets potentially distinct from underlying assets previously owned or acquired by the deceased). Thus, for example, it may be that the rights of a life tenant and/or a remainder beneficiary are to be characterised as ‘assets’ which are separate and distinct from the underlying assets which form part of the assets of the estate.134 Where an asset is realised by an estate it is often necessary to consider availability of the general discount (of 50 per cent) under Div 115. The discount will only be available in cases where a holding period of 12 months is satisfied. Curiously, the holding period commences at the date of death of the deceased for assets which the deceased acquired before September 1985 (see s 115-30 at item 5). Furthermore, in cases where the gain is assessed to the estate under s 99A of the Income Tax Assessment Act 1936 (Cth), the discount is not available (s 115-255). The application of capital gains tax in relation to life interests is a complex area, particularly in relation to their surrender and termination. An examination of the implications of creating life and remainder interests in property and other dealings in those

interests is outside the scope of this work.135 Specialist tax advice should be obtained in order to appropriately address these issues. Discussion Paper 2 (vol II) of ‘A Tax System Redesigned’,136 (the Ralph Report), acknowledged that the operation of the capital gains tax [page 362] provisions dealing with trust interests arising upon or resulting from death are unclear and set out a number of options for dealing with these problems. However, to date none of these recommendations has been implemented.

Disability of a party 7.27 As mentioned in 7.28, if the applicant is a person under a disability, the action is not properly instituted until a litigation guardian/next friend or, in New South Wales, ‘a tutor’ is appointed.137 Since a next friend has no authority to compromise his or her ward’s claim, any settlement must be sanctioned by the court.138 Similarly, if one of the beneficiaries is a person under a disability, the action cannot be concluded by deed because it is not binding on that person unless a court order is obtained.139

Application by litigation guardian where applicant under a disability 7.28 An applicant’s disability may be infancy or an intellectual disability. Since the most commonly encountered disability is the former, the commentary is directed accordingly.140 Of course, the

comments apply mutatis mutandis to an applicant under an intellectual disability.141 Where an application is being made on behalf of an infant, the application must be brought by a litigation guardian/next friend (or in New South Wales, ‘a tutor’)142 because an infant is unable to commence litigation without one. [page 363] A clear statement on the role of the next friend (today most commonly referred to as a ‘litigation guardian’) appears in Rhodes v Swithenbank143 where it was said that a next friend is alone liable for costs although, if the application is successful, the normal rule is that the costs of the applicant are paid out of the estate.144 However, that is not the only purpose for which a next friend/litigation guardian is appointed. He or she is also appointed to institute and carry the proceedings on behalf of the infant because the law considers that an infant is incapable of asserting or protecting his or her rights or forming a judgment.145 A relative146 or the local Public Trustee is the usual person appointed as next friend/litigation guardian. While closely associated with the action, a next friend is not a party to it. The infant is the applicant.147 Some jurisdictions make specific provision for a personal representative to make an application on behalf of infants.148 In Queensland, applications may be made not only by the personal representative but also by the Public Trustee and the Director General, Family Services Department.149 The legislation uses the word ‘may’, that is, the personal representative may apply. The word ‘may’ is used in its permissive

sense and there is, therefore, no duty on the personal representative to make such an application.150 In Re Magson,151 the New Zealand Court of Appeal held that there may be circumstances where the personal representative [page 364] may be regarded as under a duty to apply, but did not identify those circumstances. One obvious circumstance would be where there is no one else willing or capable of acting and the case is a strong one. A circumstance where the personal representative should not apply is where the estate is small, the surviving spouse is the sole or principal beneficiary and that spouse has care of the infant children.152 In such circumstances, the spouse can be expected to be awarded the whole estate.153 Where the personal representative acts in the capacity of litigation guardian/next friend (as well as personal representative) under such legislation, he or she is free to do so without obtaining the directions of the court.154 However, if the personal representative wishes to act as litigation guardian, personal representative, and litigation guardian/guardian ad litem or tutor for infant beneficiaries, he or she should first obtain the directions of the court except in cases of absolute necessity.155 Like a guardian ad litem,156 a next friend (or litigation guardian or tutor) has no power to compromise the infant’s claim.157

Litigation guardian required where beneficiary under a disability

7.29 As with our discussion of a next friend158 (now referred to as a litigation guardian in most jurisdictions), the following comments are directed specifically to a beneficiary under the disability of infancy. However, they apply mutatis mutandis where a beneficiary is under an intellectual disability. Where an infant is a beneficiary in an estate which is the subject of an application, a litigation guardian, or in the case of Western Australia a guardian ad litem, must be appointed to represent the infant. If a guardian ad litem is not appointed, an order may be set aside by the infant upon attaining his or her majority.159 Provision [page 365] for the appointment of a guardian ad litem (referred to in many jurisdictions as a litigation guardian) is made in all the rules of the Australian courts160 and in the relevant rules the word ‘may’ should be treated as ‘must’.161 Where there is no one willing and capable of acting as a litigation guardian/guardian ad litem or tutor, it may be that the personal representative is under a duty to do so. There is no doubt that, where the personal representative cannot obtain effective direction, it is his or her responsibility to protect the interests of the infant to the full and a court should not put the personal representative in a position where he or she cannot do so.162 A compromise agreed to by a guardian ad litem (or litigation guardian or tutor) is not binding on the infant unless it is sanctioned by the court.163 There is a decision of the Victorian Full Court164 to the effect that a next friend has no authority at all to compromise an action. If correct, this principle will also apply to a litigation guardian/guardian ad litem or tutor. In Katundi v Hay,165 the view was expressed that this statement went too far. The

position seems to be that the litigation guardian/guardian ad litem has no power to bind the infant in any agreement or compromise and must obtain the court’s approval to the compromise reached. A compromise assented to by the infant’s counsel is not binding on the infant unless it is sanctioned by the court.166 In South Australia, the opinion of an independent counsel must be obtained and the opinion must state that the settlement is for the infant’s benefit before it can be sanctioned by the court.167 In Western Australia, the court must consider the proposed compromise from the perspective of the person under the disability, and determine, from that perspective, whether the terms of the compromise are fair and [page 366] whether the compromise is for that person’s benefit.168 In order to approve a proposed compromise, the court must be satisfied that: (i)

the proposed settlement will be for the applicant’s benefit;

(ii) all the facts relevant to his or her claim have been brought together and considered by his or her legal advisers; (iii) the proposed settlement is supported by the opinion of an independent counsel who has given proper consideration to all aspects of the case; and (iv) the independent counsel’s opinion has been considered, understood and approved by the applicant’s next friend.169 In the Australian Capital Territory, New South Wales, the Northern Territory, Queensland and Victoria, a litigation guardian cannot appear in person.170 It follows that, in those jurisdictions, a guardian ad litem must appear by counsel or by solicitor. The

opinion of counsel or solicitor is generally provided to the court as a written opinion and handed up to the court. In the other jurisdictions, if the decision in Re Ker171 is followed, a solicitor could appear as both solicitor and litigation guardian/guardian ad litem. Any person of full age and capacity may act as a litigation guardian/guardian ad litem or tutor if he or she does not have an interest which is opposed to the infant’s interest.172 Usually, a parent or close relative will be the court’s first choice, but a public official such as a Public Trustee is often appointed. There is an early case which suggests that a solicitor ought not be appointed.173 However, there is no suggestion that a solicitor cannot be appointed and such appointments have been made.174 It is quite clear that a solicitor is not disqualified from acting [page 367] as a litigation guardian/guardian ad litem simply because he or she is a solicitor.

Protection of disabled beneficiary’s entitlement 7.30 Generally speaking, the courts are reluctant to reduce the entitlement of a beneficiary who is under a disability.175 However, in a proper case, an order will be made reducing that entitlement. This commonly occurs where it is considered that some provision should be made for an applicant but it is not possible to make provision for that applicant unless the disabled person’s share is reduced.176

Duties of a litigation guardian 7.31 The duty of a litigation guardian/guardian ad litem is ‘to see that every proper and legitimate step for that person’s representation has been made’ and ‘to ensure that the case is fully put before the Court in all its aspects’.177 Solicitors acting for a litigation guardian/guardian ad litem ‘must see that all the relevant matters are put before counsel, that the right questions are asked, and that the guardian ad litem or next friend of the minor fully understands and weighs counsel’s advice when it is given’.178 Counsel for the litigation guardian/guardian ad litem has to discharge what is considered to be one of the most important and responsible functions of the bar, namely that of helping those unable to help themselves179 and it is not right for counsel merely to advise the litigation guardian/guardian ad litem to leave the matter to the court. If a proposal which is directly contrary to the financial interests of the infant is made and there is no corresponding advantage to the infant, the litigation guardian/guardian ad litem should not take a neutral attitude on the matter but should actively oppose the application.180

Remuneration of a litigation guardian 7.32 A solicitor who acts as litigation guardian/guardian ad litem or, for that matter, any other professional person, for example an [page 368] accountant, is not entitled to remuneration for so acting.181 However, if the litigation guardian/guardian ad litem instructs a

solicitor to act (which is usually the case), the litigation guardian/guardian ad litem is indemnified from the estate of the infant for such costs.182 Since the infant’s costs will generally be ordered to be paid from the estate of the deceased,183 a litigation guardian/guardian ad litem is in a secure position in relation to his or her costs.

Prohibition on assignments 7.33 Some Australian states184 and the two territories185 prohibit the mortgage, charge or assignment of any provision which may be made by the court, unless made with the court’s consent.

Mediation — New South Wales and Queensland 7.34 Mediation before trial is now compulsory in New South Wales186 (unless the court otherwise orders) and Queensland.187 If the mediation results in a settlement of the dispute, the court may make an order giving effect to the terms of the agreement reached at mediation.188 However, it should be noted that what would effectively be a consent order may not be made as such in these jurisdictions.189 A court order is advisable where stamp duty issues may be involved.190 [page 369] In Queensland, an alternative to mediation is case appraisal in which a case appraiser provisionally decides a dispute. If no action is taken by a party to the case appraisal to elect to go to trial

within 28 days of the filing of the case appraiser’s certificate in the registry, the decision is binding on the parties.191 The court may make an order giving effect to the case appraiser’s decision after the 28-day period has expired.192 Again, this is advisable where stamp duty issues may be involved.193 _______________________ 1.

For an extensive list of New South Wales cases before 2008 supporting this statement see Mann v Starkey [2008] NSWSC 263 at [25]. Recent cases include Pandelakis v Chintis [2007] NSWSC 1023 at [21]; Rutter v McCusker [2008] NSWSC 269 at [75]; Foye v Foye [2008] NSWSC 1305 at [14]; Mayfield v Public Trustee [2009] NSWSC 330 at [52]; Michael v Public Trustee [2009] NSWSC 744 at [64]; McLeod v Radnidge [2009] NSWSC 1105 at [34]; Stollery v Stollery [2016] NSWSC 54 at [121].

2.

Collings v Vakas [2006] NSWSC 393; Dodge v Blissenden [2009] TASSC 116; D J Singh v Singh [2015] NSWSC 1457; Stollery v Stollery [2016] NSWSC 54 at [127] and see also Supreme Court Practice Note SC Eq 7 — Family Provision.

3.

Collings v Vakas [2006] NSWSC 393 at [67]; Stollery v Stollery [2016] NSWSC 54 at [48].

4.

Foye v Foye [2008] NSWSC 1305 at [14].

5.

Pain v Holt (1919) 19 SR (NSW) 105; Re Paulin [1950] VLR 462 at 465; Taylor v Farrugia [2009] NSWSC 801.

6.

Re Sellar (1925) 25 SR (NSW) 540; Re Roper [1927] NZLR 731; Re Nassim [1984] VR 51 at 55.

7.

J H C Morris, ‘The Choice of Law Clause in Statutes’ (1946) 62 LQR 170 at 178.

8.

Ibid.

9.

Mastaka v Midland Bank [1941] Ch 192.

10.

Re Ostrander Estate (1915) 8 WWR 367; Re Rattenbury [1936] 2 WWR 554; Re Perkins [1958] SR (NSW) 1; Re Pulver (1982) 139 DLR (3d) 638. See also NSW Act s 11(1)(b).

11.

Re Butchart [1932] NZLR 125.

12.

Re Ostrander Estate (1915) 8 WWR 367; Pain v Holt (1919) 19 SR (NSW) 105; Re Butchart [1932] NZLR 125; Re Elliott [1941] 2 DLR 71; Re Paulin [1950] VLR 462; Re Terry [1951] GLR 18; Re Greenfield [1985] 2 NZLR 662 (CA); Re Knowles [1995] 2 NZLR 377. In the United Kingdom, an order can only be made if the testator is domiciled within the United Kingdom: see the Inheritance (Provision for Family and Dependants) Act 1975 (UK) s 1.

13.

SA Act s 7.

14.

Re Donnelly (1927) 28 SR (NSW) 34; Re Osborne [1928] St R Qd 129; Re Paulin [1950]

VLR 462 at 465; Re Bailey [1985] 2 NZLR 656; Heuston v Barber (1990) 19 NSWLR 354. 15.

Hitchcock v Pratt [2010] NSWSC 1508 at [45].

16.

Re Butchart [1932] NZLR 125.

17.

Re Found [1924] SASR 236 at 240; Re Roper [1927] NZLR 731 at 743; Re Donnelly (1927) 28 SR (NSW) 34 at 35; Re Paulin [1950] VLR 462; Re Perkins [1958] SR (NSW) 1 at 7–8.

18.

Re Stewart [1948] QWN 11.

19.

Re Paulin [1950] VLR 462 at 467–8.

20.

Re Donnelly (1927) 28 SR (NSW) 34; Re Williams [1945] VLR 213; Re Paulin [1950] VLR 462; F W Kitto, ‘Are Mortgage Debts Immovables?’ (1928) 2 ALJ 85; J D Falconbridge, ‘The Privy Council and Mortgages in the Conflict of Laws’ (1946) 24 Can Bar Rev 4.

21.

Haque v Haque (No 2) (1965) 114 CLR 98 at 128–9, 133; 39 ALJR 144.

22.

Re Gilpin (No 2) [1946] VLR 417.

23.

(1992) ACL Rep 395 Qld 21.

24.

Johns v Public Trustee (1913) 15 GLR 556; Re Gilpin (No 2) [1946] VLR 417.

25.

Re Godwin [1948] QWN 1; Re Harding [1956] NZLR 506 (CA).

26.

All states and territories have this type of legislation. See Australian Capital Territory Supreme Court Act 1933 (Cth) s 32; Supreme Court Act 1970 (NSW) s 63; Supreme Court Act 1979 (NT) s 19; Judicature Act 1876 (Qld) s 4(8); Supreme Court Act 1935 (SA) s 27; Supreme Court Civil Procedure Act 1932 (Tas) s 10(7); Supreme Court Act 1958 (Vic) s 61(7); Supreme Court Act 1935 (WA) s 24(7).

27.

Re Langley [1974] 1 NSWLR 46.

28.

[2010] NSWCA 6 at [151].

29.

Re Davis [1952] VLR 517.

30.

Chamberlaine v Chamberlaine (1678) 2 Freem Ch 34; 2 Eq Cas Abr 43; 22 ER 1041; (1680) 2 Freem Ch 52; 2 Eq Cas Abr 415; 22 ER 1053; Central Trust and Safe Deposit Co v Snider [1916] 1 AC 266 at 272; Gray v Perpetual Trustee Co [1928] AC 399; Birmingham v Renfrew (1937) 57 CLR 666 at 687 per Dixon J; MacDonald v MacDonald (1935) 35 SR (NSW) 173 at 177, 178; Schaefer v Schuhmann [1972] AC 572; (1972) 46 ALJR 82.

31.

Re Richardson’s Estate (1935) 29 Tas LR 149; Re Edwards [1958] Ch 167; Re Seery [1969] 2 NSWR 290; (1969) 90 WN (Pt 1) (NSW) 400.

32.

Re Dillon [1938] NZLR 693; [1939] NZLR 550 (CA); Dillon v Public Trustee NZ [1941] AC 294 (PC); Re Webster [1976] 2 NZLR 304; Breuer v Wright [1982] 2 NZLR 77.

33.

Palmer v Bank of New South Wales [1973] 2 NSWLR 244.

34.

See NSW Act Ch 3 Pt 3.3.

35.

Re Richardson’s Estate (1935) 29 Tas LR 149 per Clark J; Re Dillon [1938] NZLR 693; [1939] NZLR 550 per Northcroft and Smith JJ; all five Law Lords in the Privy

Council in Dillon v Public Trustee NZ [1941] AC 294; Re Seery [1969] 2 NSWR 290; (1969) 90 WN (Pt 1) (NSW) 400. 36.

(1971–72) 10 UWA L Rev 115.

37.

Re Richardson’s Estate (1935) 29 Tas LR 149 per Nicholls CJ and Crisp J; Re Dillon [1939] NZLR 550 (CA) per Myers CJ and Ostler J; four of the five Law Lords in Schaefer v Schuhmann [1972] AC 572; (1972) 46 ALJR 82; and see the article by R A Sundberg, ‘The Problem in Schaefer v Schuhmann — a Simpler Answer’ (1975) 49 ALJ 223.

38.

(1971–72) 10 UWA L Rev 115 at 118.

39.

[1941] AC 294.

40.

[1972] AC 572; (1972) 46 ALJR 82. This case has been applied in Palmer v Bank of New South Wales [1973] 2 NSWLR 244; Re Webster [1976] 2 NZLR 304; and Breuer v Wright [1982] NZLR 77.

41.

Schaefer v Schuhmann [1972] AC 572 at 592; (1972) 46 ALJR 82 at 89.

42.

(2003) 214 CLR 169; 196 ALR 65.

43.

See Chapter 11.

44.

[1976] 1 NZLR 257.

45.

Ibid at 258.

46.

Re Cairns [1950] GLR 409 at 410; Stott v Cook (1960) 33 ALJR 447 at 450.

47.

Penty v Mott (1984) 6 DLR (4th) 444.

48.

For a detailed review of this issue incidental to law reform recommendations, see the reports of the National Committee for Uniform Succession Laws (Queensland Law Reform Commission (QLRC) Miscellaneous Paper 28, December 1997, pp 61–5 and 67, and QLRC Report 58, July 2004, [5.70]–[5.87]).

49.

Re Crewe [1955] NZLR 210; Cocker v Cocker [1955] NZLR 312; Re Wilson [1956] NZLR 373; Hyatt v Covalea [2011] VSC 334 at [128].

50.

Re Wilson [1943] NZLR 224; Re Cleaver [1950] GLR 68; Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 (CA); Colebatch v Colebatch [2007] NSWSC 30.

51.

Re Roberts [1919] VLR 125; Re Jones (1921) 21 SR (NSW) 693; Re Smith [1928] SASR 30; Re Jolliffe [1929] St R Qd 189; Re Green [1950] NZLR 512; Re Williamson [1954] NZLR 288; Re Raybould [1963] Qd R 188 (FC); Re Buckland (No 2) [1967] VR 3; Re M [1969] NZLJ 50; Tauz v Elton [1974] 2 NSWLR 163; Re Jones [1978] VR 272; Hughes v NTE&A [1978] VR 257.

52.

Re Scott [1950] VLR 102.

53.

Re McGoun [1910] VLR 153; Re Vrint [1940] 1 Ch 920; [1940] 3 All ER 470; Re Bradbury [1958] QWN 2.

54.

ACT Act s 22; NSW Act s 100: in Purnell v Moon (1991) 22 NSWLR 499, the reference

in this section to ‘a deceased person’ was held to refer only to the deceased whose estate is being contested; NT Act s 22; Tas Act s 8A; Vic Act s 94(c). 55.

Evidence Act 1977 (Qld) s 92; Evidence Act 1929 (SA) s 34C(1a); Evidence Act 1906 (WA) s 79C.

56.

Aged and Infirm Persons’ Property Act 1940 (SA) Pt III.

57.

Re Jones (1921) 21 SR (NSW) 693 at 695; Re Wilson [1943] NZLR 224 at 226; Re Crewe [1955] NZLR 210 at 214; Re Raybould [1963] Qd R 188 at 195; Re Buckland (No 2) [1967] VR 3 at 6; see also Hughes v NTE&A (1979) 143 CLR 134 at 150; 53 ALJR 249 at 254.

58.

See Re Crewe [1955] NZLR 210 at 214.

59.

[1950] VLR 462.

60.

Ibid at 473.

61.

Re Taylor [1968] Qd R 385 at 391; see also Re Raybould [1963] Qd R 188 at 195.

62.

[1978] VR 257 at 266.

63.

(1930) 30 SR (NSW) 165.

64.

[1968] Qd R 385.

65.

Ibid at 390.

66.

See, for example, Cocker v Cocker [1955] NZLR 312, where attention was drawn to the fact that the limitation in Hall’s case was not followed in Re Scott [1950] VLR 102; and Re Buckland (No 2) [1967] VR 3, where this limitation was rejected on the basis that Hall’s case had been misunderstood. It was said that Hall’s case was intended only as a warning to applicants and executors of the very limited use that might be made of such statements.

67.

(1979) 143 CLR 134 at 137, 138, 150; 53 ALJR 249 at 250, 254.

68.

Hughes v NTE&A (1979) 143 CLR 134 at 137–8; 53 ALJR 249 at 254. See also Re Jones (1921) 21 SR (NSW) 693; Re Smith [1928] SASR 30; Re Jolliffe [1929] St R Qd 189; Re Hall (1930) 30 SR (NSW) 165; Re Wilson [1943] NZLR 224; Re Scott [1950] VLR 102; Re Green [1951] NZLR 135 at 140, 141; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 24; Re Raybould [1963] Qd R 188; Re Buckland (No 2) [1967] VR 3; Re Taylor [1968] Qd R 385; Re M [1969] NZLJ 50; Hughes v NTE&A [1978] VR 257; Re Jones [1978] VR 272 at 275. A similar approach exists in the UK, see Re Vrint [1940] Ch 920; [1940] 3 All ER 470; Re Smallwood [1951] 1 All ER 372; [1951] Ch 369; and in the West Indies, see Franklyn v Biddy [1960] 2 WIR 346.

69.

Hughes v NTE&A (1979) 143 CLR 134 at 152; 53 ALJR 249 at 255.

70.

Ibid at (CLR) 152–3; at (ALJR) 255.

71.

[1951] NZLR 135 at 141; Family Protection Act 1955 (NZ).

72.

[1981] 2 NSWLR 532 at 540.

73.

Weyman v Erdi (1993) ACL Rep 395 NSW 38.

74.

Ibid; Perkins v Perkins (1999) ACL Rep 395 NSW 29; Byrne-Jones v Marshall (2001) ACL Rep 395 NSW 33; Ray v Greenwell [2009] NSWSC 952.

75.

(1999) ACL Rep 395 NSW 29.

76.

In this regard, see also the comments of Barwick CJ in Hughes v NTE&A (1979) 143 CLR 134 at 138; 53 ALJR 249 at 250.

77.

[1982] Fam 42.

78.

(1986) 7 NSWLR 142.

79.

Such as the amount which will be received on retirement under a superannuation scheme.

80.

Dijkhuijs v Barclay (1988) 13 NSWLR 639.

81.

Ibid at 651.

82.

Re Fullard [1982] Fam 42; O’Shaughnessy v Mantle (1986) 7 NSWLR 142.

83.

(1986) 7 NSWLR 142 at 147, 148. See 4.10.

84.

Cases which would fall into this category would include Re Brooks (1979) 22 SASR 398; and Re Little (1995) 16 QL Rep 39.

85.

Dijkhuijs v Barclay (1988) 13 NSWLR 639.

86.

See 4.9.

87.

NT Act s 7(2) and (7).

88.

Hayden v FCT (1996) ACL Rep 405 FC 53.

89.

ACT Act s 16; NSW Act s 72(1); NT Act s 16; SA Act s 10; Tas Act s 9(3); WA Act s 10.

90.

Qld Act s 43.

91.

SA Act ss 10, 15; Vic Act ss 97(4), 98.

92.

NSW Act s 66(3).

93.

Atkinson v Collector of Imposts [1919] VLR 105; Brown v Brown (1921) 22 SR (NSW) 106 at 110.

94.

Davies v Collector of Imposts [1908] VLR 272.

95.

Saunders v Minister of Stamp Duties [1923] GLR 344; [1924] NZLR 161.

96.

For precedents of such a deed, see Australian Encyclopaedia of Forms & Precedents, 3rd ed, Butterworths, Sydney, Vol 6, Compromises, particularly Form 1.278.

97.

As to which, see 8.8.

98.

See 7.20–7.26.

99.

For a consideration of what constitutes a resettlement in these circumstances, see McInerney J in Scott v Comptroller of Stamps [1967] VR 122.

100. For agreements between an applicant and executor which were overturned by the courts, see Hooker v Guardian Trust and Executors Co of New Zealand [1927] GLR 536;

and Re Hatte [1943] St R Qd 1. 101. [1943] St R Qd 1. For a recent case where a request for release was refused and an order made, see Russell v Quinton (2000) ACL Rep 395 NSW 28; [2000] NSWSC 322. 102. Re Hatte [1943] St R Qd 1 at 26 per Philp J. 103. The observation and comments of our colleagues Mr D G Cominos and Ms Paige Edwards on this area of the text are gratefully acknowledged. 104. Income Tax Assessment Act 1997 (Cth) s 128-10. Hereafter in this paragraph references are to sections of the Income Tax Assessment Act 1997 (Cth) unless otherwise indicated. 105. Section 128-15(3) (but if the legal personal representative sells to the beneficiary under the power of sale, capital gains tax may still apply to that sale). Also, if the distribution to the beneficiary occurs from a testamentary trust, rather than from the estate, it may be argued that no rollover applies. Note also that the ATO’s practice is to treat the exemption in s 128-15(3) as applying to transfer of an asset from a testamentary trust to a beneficiary (see PSLA 2003/12). 106. Section 104-215 (capital gains tax event K3) sets out exceptions to the general scheme of ‘rollover’ (contained in s 128-10) where the asset passes to an exempt entity or the trustee of a complying superannuation fund or (in certain cases) a foreign resident. See also 7.26. 107. Broadly speaking, this includes all assets, with some limited exceptions including (in certain circumstances) a dwelling which has been used as the deceased’s principal place of residence (s 118-195), certain motor vehicles as defined (s 118-5), certain trading stock if it continues as trading stock in the hands of the executor or beneficiary (s 118-25), and certain personal use assets which are deemed to be personal use assets of a beneficiary to whom they pass by ss 108-10, 108-20 and 11810. The legislation does contain other specific exemptions, but the availability of an exemption for the deceased does not necessarily mean that the beneficiary or estate will have an identical exemption. In the case of a life insurance policy of which the deceased was the original beneficial owner, the death itself may trigger a disposal of the policy (as the death generates a payout) but, where the deceased was the original owner, any gain or loss is effectively removed from capital gains tax by s 118-300. Note also that the small business concessions are being amended to allow a legal personal representative or beneficiary to access concessions within two years of death to the extent that the deceased would have been able to access them (s 152-80). 108. The rewritten form of capital gains tax legislation prescribes a series of ‘events’ which crystallise liability for capital gains tax. The most common of these is event A1 (in s 104-10) which deals with disposals. 109. Section 128-15. 110. See, for example, the comments in this regard in Capital Gains Tax and the Assets of a Deceased Estate, a booklet produced by the Australian Taxation Office, 1991, p 6.

See also the Australian Taxation Office’s Guide Market Valuation for Tax Purposes, available at . 111. In relation to indexation, note that: (a) there are special indexation rules for deceased estates in s 114-10(6); (b) where assets have been held for more than 12 months, ‘discount capital gains’ principles (under Div 115) may be applied in lieu of indexation; and (c) when calculating the period of 12 months, one can count from the time of the deceased’s acquisition (s 115-30). 112. Section 110-25. 113. Section 102-5. 114. See s 102-5 to determine whether a net capital gain arises and, if so, a net capital gain is included in assessable income. 115. The example ignores both indexation and discount gains rules which were not applicable at the times referred to in the example. 116. Section 118-195. 117. See s 118-195 generally. 118. Section 114-10. 119. Following the decision in Commissioner of Taxation v Bamford 2010 ATC 20-170 special rules apply to franked dividends and capital gains flowing through trusts (Income Tax and Assessment Act 1936 Div 6E). See PS LA 2010/1. Section 115-230 has since 2007 permitted the trustee to assume CGT liability. 120. Section 128-15. 121. Where the estate realises the gain it becomes necessary to consider whether tax is borne by the estate or the beneficiaries and (amongst other things) availability of the general discount. 122. Section 118-195. Since the house was purchased by the deceased after September 1985, the gain is apportioned by comparing the aggregate period of non-use as a main residence (by the deceased or the beneficiary) within the period from acquisition by the deceased to disposal by the beneficiary: see ss 118-200 and 118205. For dwellings acquired by the deceased after September 1985, some period of use by the deceased as the main residence is required. If a dwelling is acquired by the deceased after September 1985 and is not used at all by the deceased as a main residence, no exemption seems to be available to a beneficiary notwithstanding use by that beneficiary as a main residence (compare CCH Australian Capital Gains Tax Planner, para 28-880, which describes this as an anomaly). 123. See s 104-215 which creates event K3. 124. Section 104-215. Questions can arise concerning the point at which it can be said that an asset has ‘passed to’ the tax-exempt person. 125. These are gifts under the cultural bequests program, gifts that would have been deductible under s 30-15 if it had not been a testamentary gift, and gifts within item

4 or 5 in the table in s 30-15 (which refer to certain gifts to tax-deductible entities being public libraries, museums and art galleries). Note that s 30-15(2) provides that testamentary gifts are not deductible. 126. See ss 128-15 and 128-20. 127. P G Whiteman, Whiteman on Capital Gains Tax, Sweet & Maxwell, London, 1988, para 28-80. But note the specific exclusion where the legal personal representative transferred under a power of sale (s 128-20(2)). 128. Section 108-10. 129. Section 102-5. 130. Section 108-20. 131. Sections 128-10 and 128-15. 132. Section 128-20(2). 133. Section 128-20(1). 134. See TR 2006/14. 135. For a more detailed examination of life interests and capital gains tax, see ATO Taxation Ruling 2006/14 and also M Stewart and M Flynn, Death & Taxes: TaxEffective Estate Planning, 6th ed, Thomson Reuters, 2014 at ch 16; J Kessler QC and M Flynn, Drafting Trusts and Will Trusts in Australia, West Group, 2008 at [15-15], and G Cooper, C Evans and K Wilson, Australian CGT Handbook, 7th ed, Thomson Reuters, 2015 at [20-200]–[20-270]. 136. July 1999. 137. MacAllister v MacAllister (1944) 2 DLR 399. In South Australia, Supreme Court Rules r 78 specifically provides to a parent or guardian the right to act as a litigation guardian. 138. Glassford v Murphy (1878) 4 VLR (L) 123; Katundi v Hay [1940] St R Qd 39 at 42. 139. See 7.29. 140. The more general considerations applicable to applications by infant children of the deceased, the most common class of ‘infant’ applicant, are discussed in 4.25. 141. The more general considerations applicable to an application by a person with an intellectual disability are discussed in 4.51–4.65. 142. See rules of the various Supreme Courts: Court Procedure Rules 2006 (ACT) r 275 — litigation guardian; Uniform Civil Procedure Rules 2005 (NSW) r 7.14 — tutor; Supreme Court Rules (NT) r 15.02 — litigation guardian; Uniform Civil Procedure Rules 1999 (Qld) r 93 — litigation guardian; Supreme Court Civil Rules 2006 (SA) r 78 — litigation guardian; Supreme Court Rules 2000 (Tas) r 292 — litigation guardian; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 15.02 — litigation guardian; Rules of the Supreme Court 1971 (WA) O 70 r 2 — next friend/guardian ad litem; High Court Rules 2004 (Cth) r 21.08 — litigation guardian. In the jurisdictions

in which applications may be brought in a lower court (see 11.21 and 11.32) the rules of these courts are to the same effect. 143. (1889) 22 QBD 577 at 579. 144. See 10.2 and 10.21. 145. Rhodes v Swithenbank (1889) 22 QBD 577 at 579; see also Re E [1985] 1 All ER 609 at 617. 146. Normally a parent, but not if the parent’s interest in the proceedings is adverse to that of the infant: see B Cairns, Australian Civil Procedure, Law Book Co, Sydney, 1985, p 297. 147. Pink v Sharwood and Co [1913] 2 Ch 286. 148. Testator’s Family Maintenance Act 1914 (Qld) s 3(7); Succession Act 1867 (Qld) as amended in 1968 s 90(7); Qld Act s 41(7); Testator’s Family Maintenance Act 1912 (Tas) s 3(5). 149. Qld Act s 41(7). For an example of such an application, see Re Spence [1929] QWN 15. 150. Spelman v Spelman [1920] NZLR 202; [1920] GLR 264. See also Re Bell (1915) 34 NZLR 1067 where it was suggested by Sim J that an adopted infant daughter could request the executor to apply on her behalf under s 33(10) of the 1908 Act. It was not suggested that the executor was obliged to apply if so requested. 151. [1983] NZLR 592 (CA) at 599. 152. Re McInnes [1942] NZLR 547 at 553; Re Williamson [1954] NZLR 288 at 297; Re Thomas [1954] NZLR 302 at 304. 153. Re Thomas [1954] NZLR 302 at 304. 154. Public Trustee v Brown (1915) 34 NZLR 951; 17 GLR 708. 155. Re McCarthy [1919] NZLR 807; see also 6.9. In this case, Edwards J consulted the Chief Justice, Chapman and Sim JJ and advised that they approved this practice. 156. See 7.29. 157. Glassford v Murphy (1878) 4 VLR (L) 123; Katundi v Hay [1940] St R Qd 39 at 42; Re E [1985] 1 All ER 609 at 617. 158. See 7.28. 159. Effingham v Napier (1727) 4 Bro Parl Cas 340; 2 ER 230; Kemp v Squire (1749) 1 Dick 131; 21 ER 218. See also Dey v Victorian Railway Commissioners (1948) 78 CLR 62 at 113–14; de Groot v de Groot (1989) 13 Fam LR 292 at 294–5. 160. Court Procedure Rules 2006 (ACT) r 275; Uniform Civil Procedure Rules 2005 (NSW) r 7.14; Supreme Court Rules (NT) r 15.02; Uniform Civil Procedure Rules 1999 (Qld) r 93; Supreme Court Civil Rules 2006 (SA) rr 78 and 79; Supreme Court Rules 2000 (Tas) r 292; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 15.02; Rules of the Supreme Court 1971 (WA) O 70 r 2; High Court Rules 2004 (Cth) r 21.08.

161. MacAllister v MacAllister (1944) 2 DLR 399 at 400. 162. Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 504. 163. Katundi v Hay [1940] St R Qd 39 at 42; Re L [1968] 1 All ER 20 at 26; Re Julso [1975] 2 NZLR 536 at 538; for SA see SC Rules r 257; Halsbury’s Laws of Australia, 4th ed, Butterworths, vol 24, para 897:1. 164. Glassford v Murphy (1878) 4 VLR (L) 123. 165. [1940] St R Qd 39 at 42. 166. Hargrave v Hargrave (1850) 12 Bear 408; 50 ER 1117. 167. Pfitzner v Sergeant [1941] SASR 286. 168. Rowell v Calder [2007] WASC 144. 169. Kowal v Kowal [2008] WASC 27 at [10]; Maas v O’Neill [2013] WASC 379 at [15]. 170. See ACT: Court Procedure Rules 2006 r 275(6); NSW: Uniform Civil Procedure Rules 2005 r 7.14(2); NT: Supreme Court Rules r 15.02(3); Qld: Uniform Civil Procedure Rules 1999 r 93(3); Vic: Supreme Court (General Civil Procedure) Rules 2005 r 15.02(3); WA: Rules of the Supreme Court 1971 O 70 r 2(3). These rules enshrine the decisions in Murray v Sitwell [1901] WN 119; and Re Berry [1903] WN 125, but these decisions were not followed in Re Ker (SC(Qld), McPherson J, OS No 218/90, 30 October 1990, unreported). In that case, a solicitor acted as guardian ad litem for an infant beneficiary and appeared in person as well. 171. (SC(Qld), McPherson J, OS No 218/90, 30 October 1990, unreported). 172. B Cairns, Australian Civil Procedure, 2nd ed, Law Book Co, Sydney, 1985, pp 297–8. Anon (1852) 68 ER 770 at 771. 173. Anon (1852) 68 ER 770 at 771. 174. Thomas v Thomas (1843) 7 Beav 47; 49 ER 980; Duffy v O’Connor (1866) 1 Ch 393; Horkins v Hartey (1874) 6 PR 200. 175. Scalone v Scalone [2000] NSWSC 1028. See also 2.18. 176. Disability of infancy: Re Hokin [1959] VR 711; Re S [1975] VR 47; Re Avenell (1991) 13 QL Rep 5; Grey v Harrison [1997] 2 VR 359; Re Wright (S938/95, Douglas J, 10 September 1999, Qld unreported); Turner v Riviere [1999] NSWSC 1266; Kelly v Kelly [2006] NSWSC 371; Clarke v Clarke [2008] NSWSC 1130; Faltas v Hong Peng [2014] NSWSC 1922; Estate Pascale [2016] NSWSC 443. Intellectual disability: McGowan v Waites [2006] NSWSC 465; Brown v Grosfeld [2011] NSWSC 796. 177. Read v Read [1944] SASR 26 at 29. 178. Re Barbour’s Settlement [1974] 1 All ER 1188 at 1191. 179. Ibid. 180. Ibid at 1192. 181. Re Tyson (1907) 7 SR (NSW) 91.

182. Murray v Kirkpatrick (1940) 57 WN (NSW) 162; costs were allowed in Paxton v Nicholson [1918] GLR 393. 183. See 10.22. 184. Qld Act s 41(11); SA Act s 13; WA Act s 19. 185. ACT Act s 19; NT Act s 19. 186. NSW Act s 98(2). See also Civil Procedure Act 2005 (NSW) Pt 4 and Uniform Civil Procedure Rules 2005 (NSW) Pt 20. 187. Queensland Practice Direction No 8 of 2001, para 8(b), requires the parties to insert a dispute resolution plan in the draft directions order. This means an Alternative Dispute Resolution (ADR) process as set out in Civil Proceedings Act 2011 (Qld) Pt 6 and District Court of Queensland Act 1967 (Qld) Pt 7. The relevant ADR rules are found in Uniform Civil Procedure Rules 1999 (Qld) Ch 9 Pt 4. 188. NSW Act s 98(3); Supreme Court Practice Note SC Eq 7 — Family Provision; Civil Proceedings Act 2011 (Qld) s 50. 189. See 8.8. 190. See 7.19. 191. Uniform Civil Procedure Rules 1999 (Qld) where the time limit is found in r 341(2). 192. Supreme Court Act 1991 (Qld) s 111. 193. See 7.19.

[page 370]

8

Orders Introduction

8.1 The court’s order in response to a family provision application can take a wide variety of forms and the effect of it can depend on the relevant provision of the will, as well as the specific terms of the order. Framing a submission for an appropriate order requires that these matters receive careful attention.

Interim orders 8.2 New South Wales is the only jurisdiction which specifically provides for the making of interim orders. Section 62(1) of the NSW Act enables such orders to be made where the court is of the opinion that no less provision than that proposed to be made by the interim order would be made in favour of the eligible person after full consideration of the application. This provision appears to restrict the court’s power to make interim orders to the circumstances set out in the subsection. In the absence of specific legislation, the issue of whether interim orders can be made in applications has not been resolved. In Re Breen,1 Re Yates,2 Re Piper3 and Cotton v Owen,4 it was held that the court had no power to make an interim order. Obiter

remarks in Re Porteous5 give some further support to this view. However, an interim order was made by Roper J in Re Piper6 when it first came before the court and, in this case, Myers J records that:7 It has been the practice in this court for a considerable number of years to make what have been called interim orders, that is, orders

[page 371] which do not make complete and final provision for an applicant but which leave it open to the court, at a subsequent stage, to increase reduce or vary the provision which has already been made.

Further, in Re Blakemore8 it was said that, where there is uncertainty as to the value of a substantial asset in the estate, an interim order may be made giving leave to the applicant to bring on the application for further hearing when the value of that asset is known.9 In Young v Salkeld10 Young J considered the power of the court to make interim orders in the light of s 9(5) of the New South Wales Family Provision Act 1982 (now NSW Act s 62(1)) and reviewed the various decisions prior to the enactment of this Act.11 He identified six classes of possible interim order: 1.

provision made for a limited period with leave to the applicant to seek further provision at the expiration of the period;

2.

complete provision made for an applicant, such provision only to endure until further order of the court, reserving liberty to any party to apply to increase, reduce, rescind or substitute the provision;

3.

provision for immediate maintenance such as provided for by the Inheritance (Provision for Family and Dependants) Act

1975 (UK) s 5;12 4.

a suspensory order where, at the date of death, the applicant is left without means but there is doubt as to whether that position will continue;

5.

where the applicant is currently without funds but there is a fair degree of probability that funds will come from other sources shortly; and

6.

where the value of the estate is not sufficiently precise at the date of hearing for a final order to be made.

It should be noted that examples 3 and 4 have no relevance to Australia, since no jurisdiction has any equivalent provision to the Inheritance (Provision for Family and Dependants) Act 1975 (UK) s 5 (example 3) nor are suspensory orders (example 4) applicable, as discussed in 8.5. It is our view that, in the absence of specific legislation, interim orders may be made in special circumstances. We believe that Young J [page 372] has given examples of such circumstances when he says that an interim order can be made:13 to give some alleviation of hardship between the date of the application and the date of the final hearing, or in a semi-final sense, where not all the factors have come to light, and the court wishes to make a final adjustment of its order when such factors are revealed, but until then, to go as far as it can.

In New South Wales, the court will not insist on strict compliance with Practice Note No SC Eq 7 where an application for interim maintenance is made.14 If the state of the evidence does not permit an interim maintenance order under s 62 of the

Act to be made, an order may be possible pursuant to s 92A of the Probate and Administration Act 1898.15 A further special circumstance may be where the order is made with the consent of all parties. Interim orders in such cases have been made in New Zealand.16 An interim order was made in Hinderry v Hinderry.17

Orders in New South Wales18 8.3 Section 65 of the NSW Act provides that a family provision order must specify the person or persons for whom provision is to be made, the amount and nature of the provision, the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided and any conditions, restrictions or limitations imposed by the court. A family provision order may require the provision to be made in one or more of various ways, namely: by the payment of a lump sum of money; by periodic payments of money; by application of specified existing or future property; by way of an absolute interest, or a limited interest only, in property; by way of property set aside as a class fund for the benefit of two or more persons; or in any other manner the court thinks fit. Further, if the provision is to be made by payment of an amount of money, the family provision order may specify whether interest is payable on the whole or any part of the amount payable for the

[page 373] period, and if so, the period during which interest is payable and the rate of the interest. In addition to, or as part of, a family provision order, the court is empowered, pursuant to s 66, to make consequential and ancillary orders for the purpose of giving effect to a family provision order, including: the transfer of property of the estate directly to the eligible person in whose favour the order is made, or to any person as trustee for that person; the exercise of a right or power to obtain property for the estate; the sale of or dealing with property of the estate; the disposal of the proceeds of any sale or other realising of property of the estate; and the management of the property of the estate. Where property is directed to be held on trust, the court may declare the purpose of the trust and the way in which it is to be constituted, the appointment of a trustee and the powers and duties of the trustee and the vesting of the property in any person.19 Further ancillary powers include the power to secure the due performance of an order and the power to execute any necessary conveyance, document or instrument. The court may make additional orders necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order.20 Section 68 provides that the court may, as part of a family provision order, on the application of a beneficiary of the estate of a deceased person, fix a periodic payment or lump sum payable by a beneficiary of an estate affected by a family provision order to

represent the proportion of the property in the estate affected by the family provision order that is borne by the beneficiary’s portion of the estate and exonerate the beneficiary’s portion of the estate from any further liability under the family provision order on condition that payment is made as directed by the court. The court may at the time of distribution of an estate that is insufficient to give effect to a family provision order make orders concerning the abatement or adjustment of distributions from the estate as between the person in whose favour the family provision order is made and the [page 374] other beneficiaries of the estate as it considers to be just and equitable among the persons affected.21 Section 67 of the NSW Act permits the court to make a family provision order in the case where there is some doubt as to the death of the person in respect of whom a family provision order is sought to be made. The court will make a family provision order in favour of an applicant subject to the applicant entering into an undertaking, or giving security, that, if the order is revoked because ‘the deceased person’ was not in fact deceased at the time the order was made, the applicant will restore any property received under the order, or otherwise make restitution, in accordance with any order of the court.

Legislation addressing the issue of interim maintenance 8.4

Reference is made in 6.5 to legislation in the Australian

Capital Territory, the Northern Territory, Queensland, Victoria and Western Australia which allows a personal representative to provide what may be characterised as ‘interim maintenance’ to various classes of dependants of the deceased. Such legislation addresses, to some degree at least, the circumstances which might otherwise justify an interim order for maintenance. One difficulty with this legislation is that the discretion of the personal representative and not the court determines what maintenance, if any, will be provided. There would appear to be no basis on which a decision of the personal representative to deny maintenance to an eligible dependant could be reviewed by the court no matter how extreme his or her maintenance needs may be. It may be possible for the beneficiary in such a case to show that the decision is so perverse that there is no bona fide exercise of the discretion, and the court may order the personal representative to exercise it according to law. We consider that the specific authorisation of the court to make interim orders in appropriate cases, as is provided in the United Kingdom legislation,22 has much to commend it.

Suspensory orders 8.5 In the early years of this century, several New Zealand judges were faced with cases where the applicant was not, at the time of the application, entitled to an order but had reasonable prospects of becoming so entitled in the foreseeable future. They declined to make an immediate final order or make an order conditional on future events. Instead, they ordered the personal representative to retain and [page 375]

invest a sum of money out of the estate and granted the applicant leave to reapply at a future time should circumstances alter.23 The rationale for granting such leave was that the Act was not limited to an immediate right to relief. Accordingly, if in all probability the applicant would need provision at a future time, it could not be said that adequate provision for the proper maintenance and support of that applicant had been made.24 Such orders are known as ‘suspensory orders’.25 In 1906, the New Zealand Chief Justice, Sir Robert Stout, doubted that he had power to make such an order. In Re Bleasel26 he said: ‘I reserve leave to any of the parties to apply for a reconsideration of the order at the end of five years, if I have power to make such a reservation.’ At that time, the 1900 Act, as amended by a 1903 Act, was in force and it did not contain any provision for variation of orders. Four months after Bleasel’s case, the 1900 Act was repealed by the Testator’s Family Maintenance Act of 1906. Section 3(13) of the 1906 Act made provision for variation of an order in certain circumstances. This subsection became s 33(13) of the 1908 Act, which in turn became s 12(1) of the 1955 Act. The subsection did not deal with suspensory orders. 8.6 Other judges had no reservations about their power to make suspensory orders. It is worth noting that, in New Zealand, until the early 1920s suspensory orders tended to be made mostly by two judges, Chapman and Sim JJ. When sitting on the Court of Appeal in Fox v McDowell27 in 1921, their Honours took the opportunity to bring the virtues of suspensory orders to the notice of the profession. The question of the court’s power to make suspensory orders was not an issue in Fox v McDowell and, accordingly, their Honours’ comments at p 160 of the report are obiter.

[page 376] Some years earlier, Hosking J declared that suspensory orders were ‘the most judicious, if not the only practicable, method of making provision in small estates’.28 While the Court of Appeal spoke approvingly of suspensory orders in Fox v McDowell, it did seek to limit their application to cases where successive interests were involved. At p 160 of the report, the court said: ‘This reservation should, we think, be made in all cases where the order is in the nature of a settlement, though it is unnecessary where a lump sum is ordered to be paid.’ 8.7 In 1924, in Welsh v Mulcock29 Salmond J expressed the view that the court had no power to make suspensory orders, at least where a final order had been made. Of the four judges who comprised the Court of Appeal in that case, only Reed J agreed with Salmond J. Herdman J did not consider this point but he had been on the Court of Appeal in Fox v McDowell where such orders were spoken of approvingly. Hosking J simply concurred, but with whom is uncertain. As he had previously expressed his views on this subject in E v E30 it may be argued that he concurred with Herdman J. Later cases31 have tended to follow Salmond J’s view, although there are some cases32 which follow the earlier approach. In New Zealand, the court’s power to make suspensory orders may be regarded as unresolved. However, the absence of reported cases of suspensory orders or any discussion of them for over 50 years suggests to us either that the views of Salmond J in Welsh v Mulcock have been accepted as correct or that the New Zealand courts no longer have need to make such orders because they now deal with the matter by making an immediate order, reserving leave to the parties to apply for a variation.33

In Australia, the courts have consistently rejected the concept of suspensory orders.34 It has been said that, if there is the power to reserve leave to an applicant to make further applications from time to time, it must be found in the legislation.35 The rationale for this view [page 377] is that, if parliament intended to give such an important power to the court, it would have done so in express words.36

Consent orders 8.8 Notwithstanding the decision in Re Pentland,37 a consent order, as such, is not possible in this jurisdiction. The court’s jurisdiction depends not upon the agreement of the parties but upon the court’s view of the question whether the deceased has made adequate provision for the applicant.38 However, there is nothing to prevent the parties from submitting a proposed order to the court and inviting the court to exercise its discretion in a particular way.39 In effect, the court is being asked to sanction the agreement reached by the parties. Before making an order in terms of the agreement reached, the court will require to be satisfied that all provisions agreed to are appropriate, that is, properly supported by evidence. The legal representatives of the parties normally confirm to the court that, in their opinion, the agreement reached is necessary for, and provides adequate maintenance for, the applicant. Usually, the court will require a brief outline of the merits of the application and the details of the estate and other relevant matters so that the judge or master is familiar with the issues and forms a view as to the appropriateness of the order requested.

In Re Archibald,40 it was stated: ‘This jurisdiction does not exist merely to write a new will and split up an estate as the testator’s children might agree.’ More recently, Young J said in McMahon v McMahon:41 An order [under the relevant NSW Family Provision Act] does not follow just because all the parties to the proceedings have agreed between themselves that such an order should be made. Whilst in general if a court is asked by consent of all parties to make an order it will make an order, as I said in my judgment in Kalyk v Whelan 31 July 1985 where the legislature casts on the court the duty of seeing that an order is only made in appropriate circumstances the Court is not bound to make any order tendered by all the parties by consent. Because of this it is necessary for me to look into the facts and circumstances of the plaintiffs and the defendant so far as they are relevant to a possible claim under the Family Provision Act.

Notwithstanding the above, the discretion to make orders as proposed by the parties may be exercised in some circumstances by [page 378] the court in New South Wales, the Master in Victoria and the Registrar in Queensland.42 In Tasmania, Practice Direction 5/2006 provides that a judge cannot make an order under the Act unless that judge is satisfied that the applicant was left without adequate provision for his or her proper maintenance and support and the Practice Direction provides the appropriate process for seeking an order without a contested hearing.

Conditional orders 8.9

Conditional orders may be made in all jurisdictions.43 There

is no limit to the conditions which may be imposed as the following examples illustrate: obtaining a particular medical treatment;44 abstaining from the consumption of alcohol;45 waiving claims against a spouse’s estate;46 surrendering part of a superannuation payment to the estate;47 setting up a trust fund in a foreign country;48 that the applicant survive the deceased’s second wife and provided the latter dies before a certain date;49 that the applicant pays money to one50 or more people;51 that the applicant pays money to the estate;52 that money is payable at certain dates provided the applicant stays out of prison;53 that the applicant terminate her employment with a family company, relinquish entitlements to future distributions from a family trust, transfer her share in the family company to the estate, [page 379] resign as director of the deceased’s companies and retire as trustee of the estate;54 that part of the order be spent on a house, the money to be retained by the applicant’s solicitor and paid direct to the vendor;55 that the applicant applies funds ordered by the court to be utilised in the purchase of accommodation and executes a mortgage in favour of the estate in respect of those funds.56 In some of these instances, the court’s order granted the

executor liberty to apply for a variation of the order if the condition was not fulfilled.57

Postponement of operation of order 8.10 There is nothing in the legislation to prevent an order being made which takes effect at a future time, for example on the death of a life tenant.58 Such orders have no relationship to suspensory orders, which have been discussed in 8.5. In Welsh v Mulcock,59 it was said that postponed orders ‘amount to an actual and present exercise of the jurisdiction to make further provision out of the estate’ and ‘are essentially different from … merely suspensory orders’.

Effect of order 8.11 In all states and territories of Australia, except Queensland, an order takes effect as if it were a codicil made by the testator immediately prior to his or her death.60 In Queensland,61 the estate is held subject to the order, even though it may take the form of varying the will62 and for duty purposes takes effect as a codicil.63 In both instances, the remedy for non-payment by the personal representative is an administration action.64 [page 380]

Where the order takes effect as if made by a codicil 8.12

The order takes effect as a legacy65 and the usual legacy

interest applies.66 However, there are two features which distinguish the effect of the order from a normal legacy: where an estate has insufficient assets to pay all legacies and the order in favour of the applicant, the amount so ordered does not abate with the other legacies but is paid in priority;67 in the absence of a direction to the contrary, no stamp or death duties are payable on the amount so ordered provided there is other property passing under the will which can bear such duties.68 In the latter context, care should be taken to ensure that assets which may be ordered to be transferred to an applicant have been considered from a capital gains tax viewpoint.69

Where the order does not take effect as if made by a codicil 8.13 The order superimposes upon the personal representative’s duty of due administration a judicial order made pursuant to statute.70 The order binds the personal representative, although it does not constitute a debt due by the estate, and, accordingly, interest which may be payable on judgment debts does not apply.71 Since the order does not take effect as a legacy, if legacy interest is to be payable, it would appear to require a court order specifying this.72 However, it may be argued that, if the order is expressed in terms of ‘varying the will to provide for a legacy in the sum of $X for the applicant’, this indicates that legacy interest should be paid. It is obviously desirable to ensure that the order is explicit on whether legacy interest is payable. In New South Wales the court has power to order interest on any provision made involving a payment of money.73 Under s

15(3) of the NSW 1982 Act interest was not payable without a court order. [page 381] This provision was not continued in the current Act. However, as an order for interest is discretionary, it is difficult to see how it could become payable without a court order. Orders for interest on orders for further provision were made in Large v Higham [No 3]74 and Peters v Salmon [No 2].75

Incidence of order Historical perspective 8.14 In the first decade of the twentieth century, the question of the incidence of the order on an estate was decided by two New Zealand cases. In the first of these, Parker v Carr,76 approved by the Court of Appeal in Plimmer v Plimmer,77 it was held that an order made under the Testator’s Family Maintenance Act 1900 stood in the same position as any other charge lawfully imposed on the estate under consideration. Accordingly, it was payable primarily out of residue and, if the residue was insufficient, then out of the particular legacies rateably. In 1906, the New Zealand Parliament passed a new Testator’s Family Maintenance Act. Section 3(4) of the new Act78 overruled these cases because it provided that the incidence of any payments was to fall rateably upon the whole estate, not on residue, unless the court otherwise ordered. The Australian states, with the exception of Western Australia, followed the New Zealand lead over the next few years.79 The territories followed in

192980 and Western Australia finally adopted this legislation in 1939.81 In 1917, Chubb J in Ahearn v Ahearn,82 citing Parker v Carr,83 expressed the view that the residuary estate was primarily liable to meet any order for provision.84 He apparently overlooked s 3(3) of the Qld Act, [page 382] passed more than two years previously, which adopted s 3(4) of the New Zealand 1906 Act. The cases therefore establish that, in the absence of legislation, the incidence of the order falls primarily on residue and, if that is insufficient, then on particular legacies rateably.

Current position 8.15 The current position is that all Australian parliaments, except New South Wales, have enacted legislation which provides that the incidence of the order falls on the whole estate unless the court orders otherwise.85 For a case where an otherwise order was made, see Thompson v MacDonald.86 In New South Wales, the incidence of the order is at the discretion of the court.87 However, s 65 of the NSW Act requires the court to specify: the person or persons for whom provision is to be made; the amount and nature of the provision, and the manner in which it is to be provided; the part or parts of the estate out of which it is to be provided; and any conditions, restrictions or limitations imposed by the court.

Order applying to a particular share of the estate 8.16 There is no rule that, where the major share of an estate passes to one person, a few persons or a charity, the court should throw the burden of provision on to such a person, persons or charity.88 However, it is generally in these cases that such orders have been made.89 [page 383] There are cases where the major share in an estate passes to one person, usually a close relative, and another smaller but still substantial share passes to a stranger (often a charity). If an ‘otherwise order’ is made, the probability is that the stranger’s share will bear the incidence of the order90 and this may be particularly so where the contest is between a widow and a stranger who enjoyed an ‘intimate relationship’ with the deceased.91 In a contest between a stranger (such as a public corporation) and a charity or charities, there is no reason to cause the incidence of an order to fall on one rather than the other.92 For the purpose of considering the incidence of the order, the court may take into account gifts made by the deceased to a beneficiary during the deceased’s lifetime.93 Where part of an estate has been distributed, the court may order that the incidence falls on those shares which have not been distributed.94 Where a few close relatives (for example, sons) take the major share of an estate but not in equal shares, the court is not bound to order that the incidence match the shares prescribed by the will when making an ‘otherwise order’ with respect to those shares. For

example, in Re Horwitz,95 one son received 75 per cent of the estate and another son received 25 per cent. The order in favour of the widow was charged as to seven-eighths on the share of the former and one-eighth on the share of the latter. Similarly, in Haskakis v Hatzopoulos,96 part of the burden fell on the residuary beneficiaries and the balance fell on only two of the residuary beneficiaries. Where an ‘otherwise order’ is made, the normal costs order seems to apply; that is, in most cases, the costs of all parties are ordered to be paid out of the estate.97 In practical terms, this means that the [page 384] costs are payable out of the residue. Occasionally, the beneficiary or beneficiaries bearing the burden of the order also have to bear the costs. This occurred in Cook v Webb,98 Re Wright99 and Clarke v Clark100 but in all three instances the beneficiaries concerned were major beneficiaries of the estate. Even so, such an order must be regarded as somewhat exceptional. For another exceptional order, where the burden of the order fell on minor beneficiaries’ shares, on notional estate (effectively monies held by the other beneficiaries) and on the residue which was created by capping the costs of the plaintiff, see Moon v Abrahams.101 In Dillon v Public Trustee NZ,102 the Privy Council ordered that the costs of the successful appellant (the widow) ‘here and below’ were to be paid by the other respondents (a son and two daughters). Under the will, the son and daughters received assets worth £3875 and the widow received assets worth £1416. Again, the son and daughters, who were the beneficiaries bearing the

burden of the order, also bore the costs, including costs of the appeal. In summary it would appear that the court is likely to consider a costs order against a beneficiary only where: the beneficiary is a stranger and receives a major share of the estate; or one or two members of the family only are the major beneficiaries of the estate.

Variation of orders 8.17 When an order is made, it should be a final order because, as was said in Re Butler,103 ‘the estate must be distributed’. However, all jurisdictions provide for variations of orders where the court has ordered a periodical payment or that any part of the estate or a lump sum be invested for the benefit of a person. Where liberty to apply is granted, applications may be made summarily to deal with matters arising in the working out of the order. It does not enable the court to make what is essentially a different order.104 [page 385] The following table digests the position in all jurisdictions.

Table 8.1 Legislation Family Provision Act 1969 (ACT) s 9A

Variation of orders

Who may apply Possible variations Administrator or Reduce, suspend, person discharge. May increase beneficially periodical payments.

entitled to, or having an interest in, a part of the estate. Succession Act 2006 (NSW) s 70

No restrictions.

Revoke or alter to allow for order in favour of another and to make such additional orders as may be necessary. A second family provision order in favour of a person who is the recipient of an order out of the same estate may be made in the special circumstances set out in s 59(3).

Family Provision Act 1970 (NT) s 17

Administrator or person beneficially entitled to, or having an interest in, a part of the estate.

Discharge, vary or suspend order. Other orders may not be increased.

Succession Act 1981 (Qld) s 42

No restrictions.

Increase, reduce, vary, discharge or suspend periodical payments only. Increase only permitted where estate can meet all other lawful commitments.

Inheritance

No restrictions.

Rescind or alter any

(Family Provision) Act 1972 (SA) ss 9(5), 12

order. Discharge, vary or suspend periodical payments.

Testator’s Family Maintenance Act 1912 (Tas) s 9(5)

Administrator or person beneficially entitled to, or having an interest in, a part of the estate or a person the subject of a previous order.

Rescind, increase or reduce, but no alteration allowed if it would disturb a distribution lawfully made. (In effect, variation is largely limited to periodical payments.)

Administration and Probate Act 1958 (Vic) s 97(5)

Executor or administrator or any person beneficially entitled to or interested in any part of the estate.

Rescind or alter.

[page 386] Legislation Who may apply Possible variations Family Provision Administrator or Rescind or suspend. Act 1972 (WA) s 16 any person Increase possible in beneficially certain circumstances. entitled to or interested in the estate or a person for whom provision may be

made.

Variation and revocation of orders — New South Wales105 8.18 Section 70 provides that a family provision order may be varied or revoked by the court so as to allow provision to be made in favour of another eligible person wholly or partly from all or any of the property affected by the order. However, the court will not vary or revoke such an order to allow provision to be made in favour of another person unless the latter shows sufficient cause for not having applied for a family provision order before the making of the order sought to be varied or revoked.106 When revoking or varying a family provision order the court may also revoke any ancillary orders it made at the time of making the initial order and/or make additional orders.107 A family provision order will automatically be revoked if the grant of administration in respect of the estate of the deceased person is revoked or rescinded — unless the court otherwise orders.108 8.19 Unless the legislation specifically authorises an increase in periodical payments, the court may, on the authority of Ostler J in Collins v Public Trustee,109 be restricted to ordering only a reduction or cancellation of the periodical payment. His Honour remarked in that case: ‘[T]he power to vary or discharge the contract [sic] is a power given not for the person benefited by the prior order, but for the benefit of the person having suffered by that order.’110 In New South Wales ss 70 and 71 refer only to variation and revocation. However, s 59(3) clearly implies that the court may increase the original order where there has been a

substantial detrimental change in the applicant’s circumstances since the original order or where evidence of the deceased person’s [page 387] estate did not reveal the existence of certain property at the time of the original order. This legislation also contemplates that the court is not restricted to making only one variation.

Orders where beneficiary is bankrupt 8.20 A beneficiary’s rights to property in an estate do not arise until the personal representative has either delivered the property to the beneficiary or has assented thereto. It follows that the beneficiary’s rights do not vest in the Official Trustee until this time and there is nothing to prevent the court from dealing with the estate property in such a way that provision is made for an applicant and the gift to the beneficiary is altered in such a way that capital is not payable until the bankruptcy is concluded.111 A beneficiary does not have either a legal or an equitable interest in estate assets while an estate is under due administration. He or she simply has a right to have the estate administered.112 This chose in action vests in the Official Trustee in the event of the bankruptcy of the beneficiary113 and, once the estate is administered, the beneficiary’s interest, including a remainder interest following a life interest, vests in the Official Trustee.114 _______________________ 1.

[1933] VLR 455.

2.

(1956) 72 WN (NSW) 497.

3.

(1960) 60 SR (NSW) 328 at 330.

4.

[1999] SASC 391.

5.

[1949] VLR 383 at 387.

6.

(1960) 60 SR (NSW) 328.

7.

Ibid at 330.

8.

(1967) 1 NSWR 10.

9.

Ibid at 11.

10.

(1985) 4 NSWLR 375.

11.

Ibid at 377.

12.

Being the current equivalent of the Inheritance (Family Provision) Act 1938 (UK) s 4A.

13.

Young v Salkeld (1985) 4 NSWLR 375 at 379.

14.

Roberts v Moses [2015] NSWSC 1504 at [21].

15.

Ibid at [56].

16.

See Re Shelley [1937] NZLR 342.

17.

[2016] NSWSC 780 at [100].

18.

This section of the text has been kindly provided by the NSW editor. References to legislation are to the NSW Act.

19.

Section 69 provides that the vesting provisions of ss 78 and 79 of the Trustee Act 1925 (NSW) are deemed to apply where a vesting order is made under and pursuant to s 66; note, however, s 78(1) is expressly excluded since this relates to the execution of conveyances of property on the appointment of new trustees or retirement of trustees and so will have no application for the purpose of s 66.

20.

See NSW Act s 66(2).

21.

See NSW Act s 72(2).

22.

Inheritance (Provision for Family and Dependants) Act 1975 (UK) s 5.

23.

Colquhoun v Public Trustee (1912) 31 NZLR 1139; 14 GLR 432 per Chapman J; Hart v Hart (1915) 17 GLR 393 per Chapman J; Parish v Valentine [1916] GLR 367 per Chapman J; Blackburn v Mapp [1917] NZLR 565 per Chapman J; Toner v Lister [1919] NZLR 498 per Sim J; Re Marshall [1921] NZLR 714 per Sim ACJ; Re Hutchison [1921] GLR 371 per Adams J; Murphy v Public Trustee [1921] GLR 152 per Stout CJ.

24.

Colquhoun v Public Trustee (1912) 31 NZLR 1139 at 1140; 14 GLR 432.

25.

Welsh v Mulcock [1924] NZLR 673 at 687 per Salmond J.

26.

(1906) 25 NZLR 974 at 976.

27.

[1921] GLR 157. Herdman J was also a member of the Court of Appeal in this case and in the absence of a dissenting judgment may be taken to have agreed with

Chapman and Sim JJ on the question of suspensory orders. Herdman J was a member of the Court of Appeal in Welsh v Mulcock [1924] NZLR 673 where a suspensory order had been made. He did not criticise such orders, as Salmond J did in that case, and the reason may well have been because he agreed with their utility and purpose. 28.

E v E (1915) 34 NZLR 785 at 801 sub nom De Renzi v De Renzi (1915) 17 GLR 620 at 625.

29.

[1924] NZLR 673 at 687–8; [1924] GLR 169 at 178.

30.

(1915) 34 NZLR 785 at 801 sub nom De Renzi v De Renzi (1915) 17 GLR 620 at 625.

31.

Collins v Public Trustee [1929] NZLR 420; Re Shelley [1937] NZLR 342; Re Dyer [1949] GLR 427.

32.

Re Birch [1929] NZLR 463; Re Orr [1930] GLR 227; Re Parr [1936] GLR 283.

33.

The latter suggestion is drawn from Patterson, para 9.11.

34.

Re Molloy (1928) 28 SR (NSW) 546; Re Robert Collin (1929) 29 SR (NSW) 548; Re Breen [1933] VLR 455; Re Schwerdt [1939] SASR 333; Re Porteous [1949] VLR 383; Re Bishop [1952] VLR 543; Re Butler [1948] VLR 434; Re Brown [1952] St R Qd 47 at 51; Re McGregor [1956] St R Qd 596.

35.

Re McGregor [1956] St R Qd 596 at 600 per Brown AJ.

36.

Ibid.

37.

[1972] Tas SR (NC 27) 278.

38.

Mudford v Mudford [1947] NZLR 837 at 838; Re Archibald [1950] QWN 2; Re Julso [1975] 2 NZLR 536 at 538.

39.

NSW Act s 98(3) specifically provides for this to occur.

40.

[1950] QWN 2.

41.

(SC(NSW) Eq Div, Young J, No 4328/85, 2 August 1985, unreported); and see also Re Matthews (1987) NZ Recent Law 289.

42.

NSW Act s 98(3). In Victoria, orders by consent are possible under Supreme Court Rules r 77.01(b). See Schetzer v Trathen (2007) 16 VR 318; [2007] VSC 161 at [9] and [24]. In relation to Queensland, see Practice Direction No 3 of 2001.

43.

ACT Act s 11; NSW Act s 65(1)(d); NT Act s 11; Qld Act s 41(2); SA Act s 7(4); Tas Act s 9(1)(d); Vic Act s 96(2); WA Act s 6(3).

44.

Re Green (1911) 13 GLR 477.

45.

Re Fletcher [1921] NZLR 649; [1921] GLR 429.

46.

McGrath v Queensland Trustees [1919] St R Qd 169.

47.

Re Wright [1966] Tas SR (NC 1) 287.

48.

Re Carlaw [1966] 1 NSWR 148.

49.

Edwards v Edwards [2000] NSWSC 1210.

50.

Toth v Graham [2014] NSWSC 393.

51.

Chaloner v Chaloner [2009] NSWSC 84.

52.

Sayer v Public Trustee [2009] NSWSC 89.

53.

Curran v Harvey [2012] NSWSC 276 at [243], [244].

54.

Hedman v Frazer [2013] NSWSC 1915.

55.

Lowe v Lowe [2014] NSWSC 371.

56.

Life v Hall [2016] NSWSC 316.

57.

Re Green (1911) 13 GLR 477; Re Fletcher [1921] NZLR 649; [1921] GLR 429.

58.

E v E (1915) 34 NZLR 785 sub nom De Renzi v De Renzi (1915) 17 GLR 620; Welsh v Mulcock [1924] NZLR 673 at 688; [1924] GLR 169 at 178; Re Sinnott [1948] VLR 279.

59.

[1924] NZLR 673 at 688. Some earlier observations on suspensory orders are made at 687–8.

60.

ACT Act s 16(1); NSW Act s 72(1); NT Act s 16; SA Act s 10; Tas Act s 9(3); Vic Act s 97(4); WA Act s 10.

61.

Qld Act s 41(10).

62.

See Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 316–17.

63.

See 7.19.

64.

Re Olson [1944] NZLR 778; Re Jennery [1967] 1 Ch 280; [1967] 2 WLR 201; Wentworth v Wentworth (1991) ACL 395 NSW 43.

65.

Re Pointer [1946] Ch 324; Re Jennery [1967] 1 Ch 280; [1967] 2 WLR 201; Union Fidelity Trustee Co v Montgomery [1976] 1 NSWLR 134 at 139.

66.

Re Gray (1959) 76 WN (NSW) 415. Legacy interest was refused in Brown v Grosfeld [2011] NSWSC 796.

67.

Re Else [1948] VLR 468; Union Fidelity Trustee Co v Montgomery [1976] 1 NSWLR 134 at 141–2.

68.

Brown v Brown (1921) 22 SR (NSW) 106; 38 WN 255.

69.

For some capital gains tax considerations, see 7.20–7.26.

70.

Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306.

71.

See Re Olson [1944] NZLR 778.

72.

Interest was explicitly incorporated into the order made in Re Bevan [1954] NZLR 1108.

73.

NSW Act s 65(3).

74.

[2010] NSWSC 681.

75.

[2013] NSWSC 1071.

76.

(1905) 24 NZLR 895.

77.

(1906) 9 GLR 10.

78.

Testator’s Family Maintenance Act 1906 (NZ), assented to on 29 October 1906.

79.

Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) s 6(1), (2); Testator’s Family Maintenance Act 1914 (Qld) s 3(3); Testator’s Family Maintenance Act 1918 (SA) s 5(2); Testator’s Family Maintenance Act 1912 (Tas) ss 9(1), 10A; Widows and Young Children Maintenance Act 1906 (Vic) s 9(3).

80.

Administration and Probate Act 1929 (ACT) s 113; Testator’s Family Maintenance Ordinance 1929 (NT) s 7.

81.

Testator’s Family Maintenance Act 1939 (WA) s 5.

82.

[1917] St R Qd 167.

83.

(1905) 24 NZLR 895.

84.

Ahearn v Ahearn [1917] St R Qd 167 at 171.

85.

ACT Act s 11; NT Act s 11; Qld Act s 41(3); SA Act s 9; Tas Act s 10A; Vic Act s 97(2); WA Act s 14.

86.

[2015] VSC 93.

87.

NSW Act s 72(2). This discretion was exercised in Gardiner v Gardiner [2014] NSWSC 435.

88.

Compare Shepherd v Preen [1918] GLR 60 at 61.

89.

Re Connor (1908) 11 GLR 349; Hart v Hart (1915) 17 GLR 393; Parish v Valentine [1916] GLR 367; Ahearn v Ahearn [1917] St R Qd 167; Jackson v Hunger [1919] GLR 69; Toner v Lister [1919] GLR 498; Re Fletcher [1921] NZLR 649; [1921] GLR 429; Re Jolliffe [1929] St R Qd 189; Re Pearce [1936] GLR 324; Re McNamara (1938) 55 WN (NSW) 180; Dillon v Public Trustee NZ [1941] AC 294 at 306, 307; Re Hood [1942] VLR 144; Re White [1944] GLR 118; Re Else [1948] VLR 468; Re Campbell [1951] GLR 287; Re Norris [1953] Tas SR 32; Re Wright [1954] NZLR 630; Re Crewe [1955] NZLR 210; Re Theaker [1955] QWN 51; Shah v Perpetual Trustee Co (1981) 7 Fam LR 97; King v White [1992] 2 VR 417; Mason v Permanent Trustee Co Ltd (1997) ACL Rep 395 NSW 8; McCullum v Permanent Trustee Co [1999] NSWSC 1219; Clarke v Clarke [2008] NSWSC 113; Smith v Public Trustee [2009] NSWSC 268; Howe v Lowry [2009] NSWSC 451; Brown v Grosfeld [2011] NSWSC 796; Magur v Brydon [2014] NSWSC 1932; Hillyar v Curry [2015] NSWSC 1063; Semmler v Todd [2015] VSC 567 at [96]; Pelissier v Melville [2006] NTSC 93; and Eckersley v Eckersley [2016] WASC 154.

90.

Nosworthy v Nosworthy (1906) 9 GLR 303; 26 NZLR 285; Rowe v Lewis (1907) 26 NZLR 769 sub nom Re Going (1907) 9 GLR 485; Re Gair (1913) 33 NZLR 212; Cook v Webb [1918] GLR 282; [1918] NZLR 664; Re Johnston [1947] QWN 29.

91.

Re Dalton [1952] GLR 230. See also Re Seery [1969] 2 NSWR 290; (1969) 90 WN (Pt 1) (NSW) 400, which is reported on appeal as Schaefer v Schuhmann [1972] AC 572; (1972) 46 ALJR 82 (see, on another issue, our discussion at 7.5).

92.

Re Powell [1949] GLR 132.

93.

Re Paulin [1950] VLR 462.

94.

Re O’Connor [1931] QWN 39.

95.

(1917) 34 WN (NSW) 73.

96.

[2015] NSWSC 1408.

97.

Ahearn v Ahearn [1917] St R Qd 167; Jackson v Hunger [1919] GLR 69; Toner v Lister [1919] GLR 498; Re Fletcher [1921] NZLR 649; [1921] GLR 429; Re Jolliffe [1929] St R Qd 189; Re Pearce [1936] GLR 324; Re White [1944] GLR 118; Re Crewe [1955] NZLR 210; Re Theaker [1955] QWN 51; Shah v Perpetual Trustee Co (1981) 7 Fam LR 97.

98.

[1918] NZLR 664.

99.

[1954] NZLR 630.

100. [2008] NSWSC 1130. 101. [2010] NSWSC 69. 102. [1941] AC 294. 103. [1948] VLR 434 at 435. A variation order was refused in Re Strom [1966] 1 NSWR 592 because an increase in the original order was sought. The New South Wales Parliament responded to this decision with s 8 of the Family Provision Act 1982. This provision continues as s 59(3) of the NSW Act. 104. Re Porteous [1949] VLR 383 at 385; Re Edgar [1962] Tas SR 145 at 147. 105. This section of the text has been kindly provided by the NSW editor. References to legislation are to the NSW Act. 106. For a discussion of the like provisions under the NSW 1982 Act see Celis v Orrego (SC(NSW), Young J, 16 June 2000, unreported). 107. See s 77. 108. See s 76(4). 109. [1929] NZLR 420 at 422. 110. Re Crowley [1949] St R Qd 189. 111. This view was also expressed by Salmond J in Welsh v Mulcock [1924] NZLR 673 at 688; [1924] GLR 169 at 178. 112. Commissioner of Stamp Duties (Q) v Livingston (1964) 112 CLR 12; [1965] AC 694; Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306. 113. Re Pevsner (1983) 68 FLR 254 at 256. 114. Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306.

[page 388]

9

Appeals Introduction

9.1 An appellant in a family provision application is no different from any other appellant in that he or she must displace the presumption that the decision of the trial judge on the facts was right.1 On an appeal, the appellant will find the appellate court acts on well-defined principles, the admission of further evidence is necessarily restricted and the personal representative has particular duties to the court. However, the first substantive issue is the requirement that the appeal be instituted within the applicable time limit.

Time limits 9.2 Strict time limits apply to appeals in all jurisdictions, although the courts do have power to extend time. Delay by an appellant’s legal adviser may support an extension.2 The following table sets out the relevant rules and time limits in each jurisdiction.

Table 9.1 Jurisdiction

Appeal from judge

Time limits Appeal from master

Time limit from final

ACT NSW NT Qld SA Tas Vic WA

CPR r 5405 UCPR r 50.3 SCR r 85.12 UCPR r 748 SCCR r 281 SCR r 659 SCR r 64.03 SC(CA)R Pt 5 r 26(2)

CPR r 5405 UCPR r 49.8 SCR r 83.04 n/a SCCR r 17 SCR r 680A SCR r 77.05 SC(CA)R Pt 5 r 26(2)

decision 28 days 28 days 28 days 28 days 21 days 21 days 14 days 21 days

[page 389]

Principles applicable 9.3 The decision in House v R3 detailing the principles upon which an appellate court will interfere and substitute its discretion for that of the court below, applies in family provision applications.4 Whether an appellate court will interfere with a lower court’s decision depends to some extent on which court is involved and on the legislation operating in the particular jurisdiction. For example, in the United Kingdom the Court of Appeal will act if the trial judge ‘has made an order which substantially fails to provide reasonable provision for an applicant’.5 In New Zealand, there must be ‘some reasonably plain ground upon which the order should be varied’.6 In Australia, an appellant requires ‘a strong and cogent case’7 and must convince the appellate court that the trial judge’s exercise of discretion was ‘erroneous’,8 ‘clearly wrong’9 or had ‘miscarried’.10 In Burke v Burke11 the NSW Court of Appeal said the appellant must demonstrate ‘an error of principle; a material error of fact; a failure

to take into account some material consideration, or the converse; or that the result is unreasonable or plainly unjust so as to bespeak error of such a kind’. Failure by a primary judge to give sufficient weight to factors relevant to a discretionary decision does not justify an appellate court in reversing the decision below. However, if it can be shown that little or no weight was given to a critical factor and as a result the discretion has been exercised wrongfully, intervention by an appellate court may be justified.12 Whether the differences in wording represent a difference of approach is a moot point. The common theme of the cases is that an appellant must have a strong case and must persuade the appellate court that for some good reason it ought to intervene. [page 390] The principles governing the review of a decision on the jurisdictional question13 are those which govern the appellate review of discretionary decisions.14 The High Court has expressed agreement with the following passage, taken from Golosky v Golosky,15 on this point: Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.

Admission of further evidence 9.4 In most Australian states, further evidence will not be admitted on appeal unless there are special grounds.16 In the

Northern Territory, South Australia, Victoria and Western Australia, special grounds are not required by legislation,17 but in South Australia the court in its discretion may receive further evidence upon any question of fact.18 In practice, special grounds are required by the court.19 In the Northern Territory, although the Rules do not require special grounds for the introduction of further evidence on appeal, the practice is to require them. 9.5 In Tasmania, evidence may only be admitted by special leave and the Supreme Court Civil Procedure Act 1932 provides that this leave may only be granted in cases in which: 1.

the evidence was not in the possession of the party seeking to have it admitted and could not by proper diligence have been obtained by him or her, before the termination of the trial; or

2.

there is some other special circumstance which, in the opinion of the Full Court, justifies the admission of it.20 [page 391]

9.6 In the other states, the courts have established the principles which determine whether special grounds exist. These are: 1.

it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

2.

the evidence must be such that, if given, it would probably have an influence on the result of the case, although it need not be decisive;

3.

the evidence must be such as is presumably to be believed, though it need not be incontrovertible.21

9.7

The admission of evidence on appeal which could have

been tendered at the trial was roundly condemned by the Privy Council in Leeder v Ellis.22 Their Lordships agreed with the statement of Street CJ in the New South Wales Full Court that:23 It is impossible for this court, within the limits which necessarily control it, to achieve abstract justice in every case. It must work within its prescribed limits, and rules must be observed and complied with in the general interests of justice, and one general interest is that there should be an end to litigation, once it is instituted, and that parties should not be permitted to protract proceedings indefinitely by taking a chance on the hearing in the lower court as to whether the evidence is sufficient, and on finding it insufficient should then be able to come to the appellate court and ask for fresh evidence to be admitted, which was available at the time and in respect of which no difficulty arose in the way of putting that evidence before the court, and seek to have the matter reopened on that ground.

A similar view was held by the Court of Appeal of New Zealand in Re Magson.24 9.8 In New South Wales, under the Equity Act 1901, the admission of further evidence required special grounds and special leave.25 An exception was allowed in the case of matters occurring after the decree or order from which the appeal was brought.26 In Bowcock v Bowcock27 it was held that a change in the value of the estate assets since the trial fell within the exception and was therefore admissible without special grounds or special leave. Section 75A(8) and (9) of the Supreme Court Act 1970 (NSW) substantially repeats s 84(2) and (3) of the Equity Act 1901 and thus evidence of changes in value after the trial would still be admissible without special grounds. [page 392] In view of the above, a strong argument can be mounted for the proposition that such evidence should be admissible in other jurisdictions without special grounds or special leave or, where the

legislation requires that special leave is required, that such leave be granted as a matter of course. Obviously the power to receive further evidence on appeal is exercised with great caution so as not to subvert the finality of decisions or to encourage parties to withhold their full case.28 A good example of the exercise of this power in a family provision application is Dijkhuijs v Barclay.29 In that case, the applicant was the deceased’s former wife and had brought proceedings in the Family Court for divorce, property settlement and maintenance about two years before the deceased’s death. At the date of the property settlement, the evidence was that the deceased’s superannuation entitlement was valued at $210,800. The wife received by way of property settlement $46,546, being the net proceeds of sale of the former matrimonial home. However, salary increases over the next two years increased the payout on his retirement, some five months before his death, to $358,248. The basis of the applicant’s argument was that, because the payout was far greater than she had thought, the distribution of the matrimonial property on divorce did not terminate the deceased’s obligations to her. Accordingly, adequate provision had not been made for her by the will which, apart from a small bequest to a brother, left the deceased’s estate to his second wife of 18 months standing and the three children of his marriage to the applicant. On an application by the personal representative, the former wife’s application was permanently stayed. On appeal against this order, the applicant sought to adduce evidence as to when she first became aware of the higher superannuation payment. She alleged that no evidence of this awareness was placed before the trial judge although his Honour did refer to the higher payment as a windfall. The date when she first became aware of the higher payment was the date of the appeal.

In the Court of Appeal, Kirby P and Hope JA considered that sufficient reason had been shown to entitle the court to admit the evidence.

Duty of personal representative on appeal 9.9 A personal representative is not free to elect whether or not to appear on an appeal. Even if the other parties request the personal representative not to appear, in the interests of saving costs, he or she must still appear.30 [page 393] The personal representative is obliged to inform the court of his or her attitude to the appeal and to explain the position of the estate generally.31 No doubt this would include confirmation that the nature and value of the assets has not changed since the date of trial or as the case may be.

Security for costs 9.10 In Singer v Berghouse32 the appellant, who was an American citizen, returned to live permanently in America after her husband’s death and all her assets were in New York. The executor sought an order for security for costs because the estate would be put to cost and inconvenience if the appeal failed and the appellant was ordered to pay the costs. It was held that, because family provision applications are not ones where costs would normally follow the event,33 security for costs would not be ordered.34

Costs on appeal

9.11 As to costs on appeal, see 10.17–10.18 and in relation to the costs of the personal representative on an appeal, see 10.21. _________________ 1.

Williams v Williams [1937] 14 All ER 34 at 36.

2.

Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86; Jess v Scott (1986) 70 ALR 185.

3.

(1936) 55 CLR 499 at 504, 505.

4.

Re Gilbert (1946) 46 SR (NSW) 318 at 324; Re Clift [1963] NSWR 1313; Singer v Berghouse (1994) 181 CLR 201 at 212; 68 ALJR 653 at 658; 18 Fam LR 94 at 102; Underwood v Gaudron [2015] NSWCA 269 at [98].

5.

Thornley v Palmer [1969] 1 WLR 1037 at 1042; [1969] 3 All ER 31 at 35.

6.

Re Blyth [1959] NZLR 1313 at 1314; Re Raos (1969) NZLJ 51; Little v Angus [1981] 1 NZLR 126 at 127.

7.

Sampson v Sampson (1945) 70 CLR 576 at 586; Cooper v Dungan (1976) 50 ALJR 539; Re Bannerman [1962] NSWR 617 at 621.

8.

Coates v NTE&A (1956) 95 CLR 494 at 511; Worladge v Doddridge (1957) 97 CLR 1 at 11.

9.

Re Gilbert (1946) 46 SR (NSW) 318 at 323; Lovell v Lovell (1950) 81 CLR 513 at 526; Re Gear [1964] Qd R 528 at 532, 533.

10.

McCosker v McCosker (1957) 97 CLR 566 at 576; Hutchinson v Elders Trustee Co (1982) 8 Fam LR 267 at 269.

11.

[2015] NSWCA 195 at [40].

12.

Milillo v Konnecke [2009] NSWCA 109.

13.

See 2.3.

14.

Singer v Berghouse (1994) 181 CLR 201 at 212; 68 ALJR 653 at 658; 18 Fam LR 94 at 102; Phillips v James [2014] NSWCA 4 at [54], [55]; 85 NSWLR 619.

15.

(CA(NSW), CA40012/91, 5 October 1993, unreported).

16.

Court Procedure Rules 2006 (ACT) r 5052(1)(c); Supreme Court Act 1970 (NSW) s 75A(7), (8); Uniform Civil Procedure Rules 2005 (NSW) r 50.16(4); Uniform Civil Procedure Rules 1999 (Qld) r 766(1)(c); Supreme Court Civil Procedure Act 1932 (Tas) s 48; Supreme Court Rules (WA) O 63 r 10(1).

17.

Supreme Court Act (NT) s 54; Supreme Court Rules (NT) r 84.23; Supreme Court Civil Rules 2006 (SA) r 286(3); Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 64.22(3); Supreme Court (Court of Appeal) Rules 2005 (WA) r 47(3)(d).

18.

Supreme Court Civil Rules 2006 (SA) r 286(3).

19.

Ventura v Sustek (1976) 14 SASR 395 at 399, adopting rules laid down by the English Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489.

20.

Supreme Court Civil Procedure Act 1932 (Tas) s 48.

21.

Ventura v Sustek (1976) 14 SASR 395 at 399; Footersville Pty Ltd v Miles (1986) 41 SASR 211; Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. See also Langdale v Danby [1982] 3 All ER 129 at 137–8; and White v Pink Batts Insulation Pty Ltd (2002) 12 NTLR 23.

22.

[1953] AC 52.

23.

Ibid at 70.

24.

[1983] NZLR 592 at 597.

25.

Section 84(3).

26.

Section 84(2).

27.

(1969) 90 WN (Pt 1) NSW 721 at 725.

28.

Re Chennell (1878) 8 Ch D 492 at 505; Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 501.

29.

(1988) 13 NSWLR 639.

30.

Re Raybould [1961] QWN 47.

31.

Ibid.

32.

(1993) 114 ALR 521; 67 ALJR 708.

33.

See 10.2.

34.

Singer v Berghouse (1993) 114 ALR 521; 67 ALJR 708.

[page 394]

10

Costs Introduction

10.1 There are certain differences in the approach to an award of costs in family provision applications between the Australian and New Zealand courts. Although this text is concerned only with Australian jurisdictions, New Zealand decisions are sometimes useful and, where they have been considered to be so, they have been included.

Successful applications 10.2 In Australia, the courts from the beginning made what might be described as a ‘standard order’ where an applicant was successful. The order was that the costs of all parties were to be taxed on a solicitor–client basis and paid out of the estate.1 The only changes in recent years have been in New South Wales and the Australian Capital Territory, where the usual order now is that the costs of the plaintiff on an ordinary basis and the defendants on an indemnity basis be paid out of the estate,2 and in the Northern Territory and Queensland, where costs may be ordered on an indemnity basis or a standard basis. [page 395]

In the latter case, an indemnity does not necessarily mean a complete indemnity. Occasionally, other orders are made, for example: personal representative’s costs on a solicitor–client basis (now commonly referred to as an indemnity basis) and the applicant’s costs on a party–party basis;3 personal representative’s costs only out of the estate;4 applicant’s costs on a party–party basis out of a legacy;5 respondent personally to pay the applicant’s costs on an indemnity basis;6 respondent personally to pay part of the costs of trial on the standard basis;7 costs of the parties on the usual basis,8 with the applicant to pay part of her own costs;9 applicant to pay part of the respondents’ costs on the ordinary basis;10 and no order as to costs.11 However, there are special circumstances in most of these cases.12 In one case no order was made as to costs because one of the two beneficiaries did not oppose the application and the usual costs order would have further reduced the share of that beneficiary.13 Even when [page 396] an application is successful, issues of credibility and high costs in a small estate can have an adverse effect on a costs order.14 In Queensland, an order for costs out of the estate is a debt within the meaning of the Qld Act s 59.15 As a matter of course, the Australian courts have never adopted

the practice of fixing costs16 but in recent years, costs have been capped in a number of cases.17 Where a Calderbank letter18 on costs is sent, costs out of the estate are likely to be ordered up to the date of the letter only.19 In New South Wales, the court will order indemnity costs on the basis of refusal of a Calderbank offer only if it considers the refusal of that offer to be unreasonable.20 In New South Wales, for a party to succeed in obtaining an indemnity costs order based on a Calderbank letter, it is necessary to show that it was unreasonable for the recipient of the offer to have rejected it.21 In Tchadovitch v Tchadovitch an offer of settlement of $1.759 million was rejected by the executors, who were the deceased’s brothers. The final order in favour of the applicant was $1.925 million. The court held that it had not been established that the defendants had acted unreasonably and the applicant was thus not entitled to costs on an indemnity basis.22 This decision was upheld on appeal.23 In South Australia, the court will exercise its general discretion in estate matters where: offers have been made under rr 187 and 188; parties have been separately represented unnecessarily; and the amount in issue is relatively small. [page 397] For the award of costs in a small estate where costs exceeded the value of the estate see Whitington v Whitington.24 Although the court may order costs against parties who have not succeeded, such orders depend on all the circumstances.25 In Western Australia, a special costs order may be made in a family provision application.26

Unsuccessful applications 10.3

In the High Court in Singer v Berghouse27 it was said that:

family provision cases stand apart from cases in which costs follow the event; no order as to costs is not uncommon; and in some circumstances it is appropriate for an unsuccessful party to have his or her costs paid out of the estate. However, in New South Wales, public policy reasons are considered as justification for the plaintiff paying the defendant’s costs in a failed application. These reasons are that costs are often out of proportion to the size of the estate and are to the disadvantage of all concerned.28 Cases where unsuccessful applicants have obtained orders for payment out of the estate are uncommon and should be regarded as a rare event.29 The personal representative would normally be entitled to his or her costs out of the estate.30 However, in New South Wales, r 42.25 of the Uniform Civil Procedure Rules 2005 provides for cases where the [page 398] personal representative is not entitled to deduct his or her costs from the estate. In this regard, see Rutter v McCusker [No 2].31 Regardless of the costs order which may be made, there is considerable wisdom in the advice given by the Victorian Court of Appeal in Forsyth v Sinclair (No 2)32 that ‘Parties should not assume that litigation can be pursued safe in the belief that costs will always be paid out of the estate. Every effort should be made

to resolve the dispute before costs get out of proportion’. We have already commented on this imperative in the context of small estates. For a discussion on proportionality of costs see Cernaez v Cernaez (No 2).33 For a discussion relating to costs generally see Salmon v Osmond.34 10.4 After a comprehensive review of the authorities, the South Australian Full Court said in a case where the application had failed at first instance: The principles are that, generally speaking, there will be no order as to costs of an unsuccessful application. The court may in its discretion make an order in favour of an unsuccessful applicant who makes a reasonable application founded on a moral claim or obligation. While it is unnecessary to decide the issue in this case, the cases also suggest that the court may in its discretion order an unsuccessful applicant to pay costs where the claim was frivolous or vexatious or made with no reasonable prospects of success or where the applicant has been guilty of some improper conduct in the course of proceedings.35

In the majority of cases, the judgments are silent on the question of costs or, in other words, there is no order as to costs.36 In other cases, the court will order that there be no order as to costs.37 Notwithstanding what might be regarded as a long-standing common practice that there should be no order as to costs on a failed application, there are variations in the way this practice is applied. These variations can be explained partly by differences in the Supreme Court Rules and differences in legislation, and partly by differing attitudes to litigation [page 399] within the jurisdictions and a desire to limit costs in litigation involving deceased estates.38

Australian Capital Territory 10.5 Rule 1721 of the Court Procedure Rules 2006 provides that costs are at the discretion of the court. We are not aware of any authorities on this point in the Australian Capital Territory.

New South Wales 10.6 In New South Wales, r 42.1 of the Uniform Civil Procedure Rules 2005 prescribes that costs are to follow the event unless otherwise ordered. This rule was considered by Gaudron J in Singer v Berghouse39 where her Honour said that making no order as to costs was not uncommon in unsuccessful applications, particularly if it would have a detrimental effect on the applicant’s financial position. Consideration of the detrimental effect it would have on the applicant’s finances was also mentioned in Re De Feu.40 General principles on costs orders in New South Wales are set out in Harkness v Harkness (No 2)41 and are as follows: (a) In Singer v Berghouse, Gaudron J said:42 Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Act which, in s 33, makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant’s financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate.

(b) Despite the above statement, which, of course, was written in the context of a security for costs application, and in respect of proceedings under the Family Provision Act, s 99 of the Succession Act provides a wide discretion in relation to costs (‘in such manner as the Court thinks fit’).

(c) The view of some practitioners advising a potential applicant contemplating a claim for a family provision order, that there is little risk, and probably much to be gained, in making a claim, however tenuous, because even if the claim fails the applicant will, [page 400] very likely, get his, or her, costs out of the estate and that he, or she, will not be significantly out of pocket, and the legal practitioner will receive his, or her, costs and disbursements in any event, has been thoroughly discredited. (d) Parties should not assume that this type of litigation can be pursued, safe in the belief that costs will be paid out of the estate.43 It is now much more common than it previously was for an unsuccessful applicant to be ordered to pay the defendant’s costs of the proceedings44 and be disallowed his, or her, own costs. (e) Where, as here, the issue is whether the unsuccessful applicant should bear the costs of the successful defendant, s 98 of the Civil Procedure Act, and the rules quoted above, will apply, and, in the absence of some good reason to the contrary, there should be an order that the costs of the successful defendant be paid by the unsuccessful plaintiff.45 (f)

An unsuccessful plaintiff will, usually, be ordered to pay costs where the claim was frivolous, vexatious, made with no reasonable prospects of success, or where she or he has been guilty of some improper conduct in the course of the proceedings.46

(g) In small estates particularly, the court should be careful not to

foster the proposition that obstinacy and unreasonableness will not result in an order for costs.47 (h) Proceedings for a family provision order involve elements of judgment and discretion beyond those at work in most inter partes litigation.48 (i)

In exercising its discretion in relation to costs, the court will have regard to ‘the overall justice of the case’.49 The ‘overall justice of the case’ is ‘not remote from costs following the event’. However, the court may be more willing to depart from the general principle in proceedings for a family provision order than in other types of case.50

(j)

As proceedings for a family provision order are essentially for maintenance, a court may properly decide to make no order for costs, even though it were otherwise justified, against an [page 401] unsuccessful applicant, if it would adversely affect the financial position which had been taken into account in dismissing the application.51

(k) There are also other circumstances that may lead the court to order payment out of the estate of the costs of an unsuccessful plaintiff. The court may allow an unsuccessful plaintiff costs out of the estate, if in all the circumstances the case was meritorious, reasonable or ‘borderline’.52 In recent years, the most common costs order in New South Wales when an application is dismissed is that the plaintiff pays the defendant’s costs, usually on a party-and-party basis.53 Other orders are sometimes made.54 If costs are considered to be excessive, the court may cap them.55 If the personal representative

has acted unreasonably or for his or her own benefit, the order is likely to be no order as to costs and that the personal representative will not be entitled to deduct his or her costs from the estate.56 A statement of general principles which [page 402] are relevant to costs orders in applications in New South Wales may be found in Harkness v Harkness (No 2).57 Given the remarks of Gaudron J above, one might expect that most failed applications would result in an ‘otherwise order’ in New South Wales. However, this is not the case. Cases in which the applicant is not required to pay the respondent’s costs were said to be rare in New South Wales in Ray v Greenwell.58 The provisions of s 99 of the NSW Act allow the court to order costs out of the estate or notional estate as it thinks fit. Most commonly, however, the court orders the plaintiff to pay the defendant’s costs of a failed application.

Northern Territory 10.7 In the Northern Territory Bowyer v Wood has been held not to be authority for the proposition that the court may only award costs against an unsuccessful applicant where the claim was frivolous or vexatious or made with no reasonable prospects of success.59 However, in the case in question, it was held that the applicants had no reasonable prospects of success and they were ordered to pay the second defendant’s costs. A further factor in that case was that the applicants left it until a few days before the

trial to decide not to continue with their case, thus causing an unnecessary build-up of costs. In Simonetto & Simonetto v Dick (No 2),60 a claim by two grandchildren was dismissed. The defendant sought an order that the plaintiff pay the defendant’s costs. No order was made as to costs. In Edgar v Public Trustee NT61 a claim by an adult son was dismissed. The applicant was ordered to pay 80% of the second defendant’s costs of trial on a standard basis and otherwise costs of and incidental to the proceeding from the date of offer of compromise which the court treated as a Calderbank offer.

Queensland 10.8 In Queensland, r 689 of the Uniform Civil Procedure Rules 1999 provides that costs follow the event unless otherwise ordered. This rule has applied in Queensland since 1900.62 However, the usual practice described in Bowyer v Wood has been consistently followed.63 There are also several cases where unsuccessful applicants have received [page 403] orders for their costs to be paid out of the estate.64 In Underwood v Underwood,65 the approach set out in Re Sherborne Estate (No 2)66 and Singer v Berghouse67 was regarded as the proper one to follow in Queensland, and the South Australian Full Court’s decision in Bowyer v Wood was seen as relevant to the Queensland approach. In other words, the old practice still applies in Queensland. Rule 687(2) of the Uniform Civil Procedure Rules 1999 allows the court

to fix or cap costs. Costs have been fixed or capped in several cases.68

South Australia 10.9 In South Australia, r 263 of the Supreme Court Civil Rules 2006 provides that, as a general rule, costs follow the event. However, the Full Court has held that family provision matters are outside the general rule. After considering the comments of Gaudron J in Singer v Berghouse,69 similar views in Morse v Morse (No 2)70 and Gillard J’s comments in Re Sitch (No 2),71 above, the Full Court has held that, generally speaking, there will be no order as to costs of an unsuccessful application.72

Tasmania 10.10 In Tasmania, s 3(1) of the Tas Act gives the court discretion as to costs in a family provision application. Rule 918 of the Supreme Court Rules 2000 provides that costs are at the discretion of a court or a judge. Reference was made in Morse v Morse (No 2)73 to the practice of making no order as to costs and in particular to the Tasmanian case of Re the TFM Acts74 where no order was made as to costs. In Morse’s case the applicants received an order for costs up to a certain date out of the estate. For the application of Calderbank principles and offers of compromise under Pt 9 of the Supreme Court Rules 2000, see Adkins v Adkins (No 2)75 and Woolnough v Public Trustee (No 2).76 [page 404]

Victoria 10.11 In Victoria, s 24 of the Supreme Court Act 1986 provides that costs are at the discretion of the court. The Supreme Court (General Civil Procedure) Rules 2005 do not provide that costs are to follow the event unless otherwise ordered. For many years Victoria followed the usual practice in family provision applications.77 For example, it was followed in Coombes v Ward (No 2).78 In Re Sitch (No 2) and Bentley v Brennan; Re Bull (No 2)79 Gillard J said that in the past, the general practice was that if an application failed the applicant was not ordered to pay the costs. On occasion, costs of an unsuccessful applicant were ordered to be paid out of the estate.80 From 1997 to 2014, if an application was made frivolously, vexatiously, or with no reasonable prospects of success, the court could order costs against the applicant as provided for in s 97(7) of the Victorian Act. Section 97 was repealed in 2014 and the general practice mentioned above now applies to family provision applications in Victoria. Some unsuccessful claims will not meet the s 97(7) characterisation of having ‘… been made frivolously, vexatiously or with no reasonable prospect of success…’. Nevertheless, the secondary hurdle of s 97(6) remains, viz, making a costs order which the court deems just. Section 97(6) substantially re-enacts its predecessors which conferred on the court a general discretion in Pt IV cases to make a costs order which seemed just. Notwithstanding the disinclination of past judges, in Re Carn; Moerth v Moerth (No 2)81 Gardiner AJ considered that it was ‘just’ that the unsuccessful claimant pay the costs of the estate. He made the following costs orders against the unsuccessful plaintiff: 1.

the defendant’s costs of the proceeding are to be paid out of

the estate on a trustee basis; 2.

the plaintiff is to reimburse the estate for the costs mentioned in paragraph 1 for an amount equal to the party/party costs of the estate;

3.

if the plaintiff fails to pay any part of the defendant’s costs so ordered, then the costs expenses of the defendants of and incidental to the proceeding shall be had and retained out of the estate. [page 405]

Western Australia 10.12 In Western Australia, O 66 r 1 provides that costs are at the discretion of the court. They may be refused if a party’s conduct or a claim for an unreasonably excessive amount has resulted in costs being unnecessarily or unreasonably incurred. In Ingamells v WA Trustees & Randall82 no order was made as to costs in a failed application. Until Daniels v Hall83 the only previous case was Ingamells’ case where no order was made as to costs. However, EM Heenan J noted in Daniels v Hall that there has been a tendency in recent times to move away from a more lenient attitude in the past to one where costs should follow the event except in rare cases. In that case, the unsuccessful applicant was ordered to pay the defendants’ costs. It was noted, with some degree of understatement, that the application had ‘little or no real merit to commend it’.84 It may well be that the same costs order would have been made regardless of any modern tendency. As it was an unmeritorious application and the applicant was well able to pay the costs, the costs order may also be seen as simply illustrating the need to discourage such applications.

10.13 Whether it indicates an intention in Western Australia to follow the New South Wales approach in the future remains to be seen. In Daniels v Hall (No 2),85 attention was drawn to the modern tendency86 to move away from no order as to costs where the applicant is unsuccessful to costs following the event.87 In that case, the application was dismissed with costs.

General overview 10.14 Thus, most jurisdictions adhere to the well-established practice enunciated by Debelle J in Bowyer v Wood that, generally speaking, on a failed application, there will be no order as to costs. In New South Wales the cases suggest that the practice is more honoured in the breach than the observance. In Victoria s 97(7) of the Vic Act is likely to be a major hurdle for some applicants. The position in the territories is unknown. If the court takes the view that the application ought not to have been brought, the applicant will be ordered to pay the respondent’s costs. Such an order is not inevitable but the risk is high.88 [page 406] Where an applicant has no reasonable prospects of success but insists on a court hearing, dismissal with costs following the event may be expected.89 We regard it as unfortunate that there is now a difference between costs orders in New South Wales90 (where the normal rule is costs follow the event, no order as to costs is an exception and costs out of the estate is a rarity) and Victoria91 where the position appears to be similar to that in New South Wales, and

those in the other jurisdictions (where no order as to costs is the normal rule, costs out of the estate is an exception and costs following the event is a rarity). We can only hope that unity will eventually prevail. The traditional approach has two advantages, viz it has High Court support and does not actively discourage marginal applications.

Where dismissal of application arises from a technical question 10.15 Where the application has been dismissed because of a technical question involving the interpretation of the relevant statute, there is no common approach to costs orders.92 In some cases, the applicant has been ordered to pay the respondent’s costs.93 Costs out of the estate were allowed in Re Lack94 but not allowed in Re De Feu95 and Re Prakash.96 The better view would support disallowance because, as Douglas J said in Re Milanovic: ‘It seems to be axiomatic, however, that if I have not jurisdiction to grant relief I have not jurisdiction to grant costs.’97 It follows that an applicant in this predicament will rarely, if ever, obtain costs out of the estate and may be ordered to pay the costs of all respondents. [page 407]

Costs orders where applicant dies before trial 10.16 If the application is successful,98 the usual practice on costs applies.99 Where an application does not proceed but a claim

for costs is made, it sometimes happens that an order will be made that the applicant’s costs be paid out of the estate on an indemnity basis.100 However, an applicant was ordered to pay the executor’s costs in McEvoy v Public Trustee.101 It follows that there is no standard order in these cases. The order probably depends on the court’s view of the merits of the case.

Costs on appeal Successful appeals 10.17 In the case of a successful appeal, the usual order is for costs of both parties to be paid out of the estate,102 sometimes on a solicitor–client basis.103 On rare occasions, the respondent will be ordered to pay the appellant’s costs.104 The basis is not clear, but it seems that this will happen where the respondent is perceived not to have acted properly, for example by giving untruthful evidence,105 or by failing to adduce evidence which that party was duty bound to adduce.106 An order that the parties bear their own costs may also be made where the estate is small.107 For a discussion relating to costs generally see Salmon v Osmond.108

Unsuccessful appeals 10.18 A working rule has been applied in awarding costs in unsuccessful appeals: namely, in an appeal which is ‘adventurous’ or in effect seeks a ‘second opinion’, the appellant can expect to be visited

[page 408] with costs109 — that is, costs will follow the event110 and the appellant will have to pay the costs of all parties on a party– party111 or solicitor–client112 basis. Similarly, where the application fails through some technicality113 or where the appeal is brought on weak grounds, it is likely to be dismissed with costs.114 However, if the appeal is considered to be justified, the estate may be ordered to bear the costs of the appeal. One circumstance of a justified appeal is where the appeal is decided on different grounds from those of the court below.115 In some cases, costs have been ordered to be paid out of the estate without any reasons being given,116 or where special circumstances were held to exist but the circumstances were not clearly enunciated.117 However, the special circumstances were made clear in Fox v Burvill.118 In that case, all parties to the appeal consented to the costs of the appeal being paid out of the estate. Clearly, there is no rule that the estate generally should bear the costs of an appeal.

Unsuccessful applications by Public Trustees 10.19 There are two New Zealand cases where applications were unsuccessful, but the applicants obtained orders for costs out of the estate.119 However, these cases involved the exercise of a statutory power by the Public Trustee. The question of costs had been left open in a similar case a few years before.120 In such cases, it seems that the Public Trustee will not be discouraged from applying through fear of an adverse costs order against the Public

Trustee. Even where the Public Trustee lost on appeal, costs were allowed out of the estate.121 In one Australian case, where an application by a Public Trustee was unsuccessful, costs were nevertheless allowed out of the estate on a solicitor–client basis.122 [page 409] It cannot be argued that a Public Trustee enjoys a privileged position in relation to costs when making an application on behalf of a person with an intellectual disability. Nonetheless, the courts do appear to take into account the statutory role of a Public Trustee and the fact that, in most cases, the persons for whom a Public Trustee applies would be unable to meet a costs order. It is no doubt for these reasons that unsuccessful applications by a Public Trustee on behalf of such persons are likely to result in orders for costs out of the estate.

Taxation on a solicitor–client basis 10.20 The general rule is that, unless an order provides for taxation on a solicitor–client basis, costs are taxed on a party and party basis.123 However, the rule does not apply to orders under family provision legislation because an applicant is entitled to a complete indemnity for costs.124 It follows that an order that the costs of all parties be paid out of the estate should be taxed on a solicitor–client basis. It should be of the nature of a solicitor and own client taxation, but without luxuries.125 Exceptions to the rule are found in New South Wales, where cost orders are on an ordinary or indemnity basis, and Queensland and the Northern Territory, where they are payable on an indemnity basis as

opposed to a standard basis.126 If they are ordered to be paid out of the estate, an indemnity basis does not mean a complete indemnity. Applications under this legislation are ones to which the two counsel rule applies and accordingly two counsel may be employed if the applicant is a prudent person who, unless compelled by poverty, would not come into court without two counsel.127

Costs of the personal representative 10.21 It will be seen that, as a general rule, the personal representative is entitled to his or her costs out of the estate on a solicitor–client basis or an indemnity basis. Even where the other parties are not awarded costs out of the estate, the personal representative is usually allowed his or her costs.128 [page 410] A personal representative who appears and merely submits to the order of the court runs the risk of being denied his or her costs out of the estate.129 If the personal representative takes sides with particular beneficiaries and strenuously opposes the application, he or she also runs the risk of being denied costs out of the estate.130 As indicated in 6.6, the proper course is to adopt an approach somewhere between these two extremes. A personal representative who undertakes unnecessary work because the will is being defended adequately by another defendant can expect to have his or her costs reduced by the court.131 Personal representatives who are also major beneficiaries must

guard against building up excessive costs on the assumption that as personal representatives they will be entitled to deduct their costs from the estate regardless of the amount involved. Personal representatives are only entitled to an indemnity for costs provided those costs have been reasonably and properly incurred.132 On an appeal, the personal representative is entitled to the costs of perusing the record and of a formal appearance.133 His or her costs should be ordered to be paid out of the estate.134 A personal representative’s costs in a family provision application are testamentary expenses.135

Costs of litigation guardian 10.22 A litigation guardian136 is entitled to an indemnity for his or her costs out of the infant’s estate.137 Apart from this indemnity, the court regularly awards the costs of the litigation guardian out of the estate. This occurs even where other parties, apart from the personal representative, are not awarded their costs out of the estate.138 However, the litigation guardian must have acted reasonably in respect of the application.139 _________________ 1.

Re Mailes [1908] VLR 269; Re Read [1910] VLR 68; Ahearn v Ahearn [1917] St R Qd 167; McGrath v Queensland Trustees [1919] St R Qd 169; Re Birch (1920) 42 ALT 39; Re K [1921] St R Qd 171; Re Found [1924] SASR 236; Re Horner [1925] St R Qd 232; Re Jolliffe [1929] St R Qd 189; Re Newell (1932) 49 WN (NSW) 181; Re McCreedy [1938] St R Qd 293; Re Brasnett [1941] QWN 32; Ellis v Leeder (1951) 82 CLR 645 at 656; Re Barron [1955] QWN 82; Bowcock v Bowcock (1969) 90 WN (Pt 1) (NSW) 721 at 730 para F; Re Bodman [1972] Qd R 281; Re Pope (1975) 11 SASR 571; Re Brooks (1979) 22 SASR 398; Hughes v NTE&A (1979) 143 CLR 134; 53 ALJR 249; Parente v Parente (1982) 29 SASR 310; Re McCaffrey (1982) 29 SASR 582; Re Cobb [1989] 1 Qd R 522.

2.

Niech v Bowd (1981) 7 Fam LR 102; Green v Ryterski (1981) 7 Fam LR 834; Luciano v Rosenblum (1985) 2 NSWLR 65; Re Fulop (1987) 8 NSWLR 679; Gorton v Parks (1989) 17 NSWLR 1; Re Adamow (1989) 97 FLR 410; and see s 99 of the NSW Act; Peter Kulczycki

v Public Trustee WA [2013] ACTSC 230 at [120]; Hillman v Box (No 4) [2014] ACTSC 107 at [410]. 3.

Re Harris (1918) 18 SR (NSW) 303.

4.

Re Hall [1941] QWN 3; Re Scott [1950] VLR 102; Reeves v Berge Phillips (1982) 7 Fam LR 940.

5.

Re Lanfear (1940) 57 WN (NSW) 181.

6.

Adkins v Adkins (No 2) [2009] TASSC 32; Tapp v Public Trustee [2009] TASSC 62. It may be noted that in the latter case the order operated from the date of filing of the respondent’s affidavits. This form of order is extremely rare and appears to have been based on the size of the estate, the financial circumstances of the applicant, the merits of the case and the manner in which the proceedings were conducted. In our view, it is likely to be considered only where there is no fund to pay costs, the applicant has a strong case and the respondent has opposed the application to the bitter end.

7.

Hansen v Hennessy [2014] VSC 115. The reason for this order was that the executrix mixed estate moneys with her own within six months of the date of death and generally treated estate funds as her own.

8.

See 10.6.

9.

Gardiner v Gardiner [2014] NSWSC 435.

10.

Fulton v Fulton (No 2) [2014] NSWSC 857. This case was not simply a family provision case. It involved an action for money owing as well.

11.

Stone v Stone [2016] NSWSC 605.

12.

In South Australia costs in probate matters are dealt with in r 195 of the Supplementary Rules.

13.

Re Raineri (1991) 14 Qld Lawyer Rep 82.

14.

Cangia v Cangia [2008] VSC 455; and Cangia v Cangia (No 2) [2008] VSC 556. Costs of $97,000 in a $360,000 estate were capped at $60,000.

15.

Re Linning [1995] 1 Qd R 274.

16.

The few reported cases where costs have been fixed by courts in Australia include Re Whitfield [1937] VLR 17; Re Hall [1941] QWN 3; and Re Heaslop [1948] QWN 10.

17.

Gill v Smith [2007] NSWSC 832; Underwood v Underwood [2009] QSC 107; Jones v Jones [2012] QSC 342; Cerneaz v Cerneaz [No 2] [2015] QDC 73.

18.

That is, a letter making an offer of settlement stated to be without prejudice or without prejudice as to costs. The name comes from Calderbank v Calderbank [1976] Fam 93. A Calderbank offer tends to be used only where the settlement machinery in the rules of court is deficient.

19.

Dobb v Hacket (1993) 10 WAR 532; Woolnough v Public Trustee (No 2) [2005] TASSC 102.

20.

Commonwealth v Gratton [2008] NSWCA 117; Bartlett v Coomber (No 2) [2008] NSWCA 282.

21.

Leichhardt Municipal Council v Green [2004] NSWCA 341.

22.

Tchadovitch v Tchadovitch [2009] NSWSC 1481.

23.

Tchadovitch v Tchadovitch [2010] NSWCA 316 at [88], [93].

24.

[2009] SASC 178.

25.

Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327.

26.

Maas v O’Neill [2013] WASC 379 at [39]. Such orders are ones which allow the taxing officer to exceed the limit imposed by Item 17 of the scale under the Legal Practitioners (Supreme Court) (Contentious Business) Determinations. It has been observed that it does not follow from a special costs order that the taxing officer will assess costs above the scale. Ibid at [40].

27.

(1993) 114 ALR 521; 67 ALJR 708 at 709, 710.

28.

Bates v Cooke (No 2) [2014] NSWSC 1322 at [31]. It has been said that those reasons apply with equal force in Victoria: Briggs v Mantz (No 2) [2014] VSC 487 at [34], [35].

29.

Re Shannon (1935) 35 SR(NSW) 516; Re Whitfield [1937] VLR 17; Re Bodman [1972] Qd R 281; Re Klease [1972] QWN 44; Re Foote (SC(Qld), Macrossan J, OS No 460/79, 25 March 1980, unreported); Re Lack [1981] Qd R 112; Collings v Vakas [2006] NSWSC 393; Cope v Public Trustee of Q’ld [2013] QDC 176.

30.

Re McGoun [1910] VLR 153; Re Sharp [1923] St R Qd 102; Re Platt [1952] QWN 3 (costs of remainderman allowed where personal representative not separately represented); Re Nielsen [1968] Qd R 221; Krause v Sinclair [1983] VR 73.

31.

[2009] NSWSC 71.

32.

[2010] VSCA 195 at [27].

33.

[2015] QDC 73.

34.

[2015] NSWCA 42.

35.

Bowyer v Wood (2007) 99 SASR 190 at 210; [2007] SASC 327.

36.

Re Maslin [1908] VLR 641; Re McGoun [1910] VLR 153; Re Chapman [1918] St R Qd 226; Re Roberts [1919] VLR 125; Re Kennedy [1920] VLR 513; Re Richardson [1920] SALR 24; Re McCreedy [1938] St R Qd 293; Re De Feu [1964] VR 420; Re Milanovic [1973] Qd R 205; Dobell v Van Damme [1982] VR 425; Re Lago [1984] VR 706.

37.

Re the TFM Acts (1916) 12 Tas LR 11; Thompson v Kelsey (SC(NSW), Young J, No 1783/85, 14 April 1986, unreported); Ingamells v WA Trustees & Randall (SC(WA), White J, No 2671/89, 11 February 1992, unreported); Coombes v Ward (No 2) [2002] VSC 84; Reddie v Cornock [2005] NSWSC 187; Ray v Greenwell [2009] NSWSC 1197.

38.

See, for example, SA Practice Direction No 8.1.

39.

(1993) 114 ALR 521; 67 ALJR 708 at 709.

40.

[1964] VR 420 at 428.

41.

[2012] NSWSC 35 at [18]. These principles were adopted in Toth v Graham [2014] NSWSC 393.

42.

[1993] HCA 35; (1993) 114 ALR 521 at 522.

43.

Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) [2010] VSCA 195.

44.

Lillis v Lillis [2010] NSWSC 359 at [23].

45.

Moussa v Moussa [2006] NSWSC 509 at [5].

46.

Re Sitch (No 2) [2005] VSC 383.

47.

Dobb v Hacket (1993) 10 WAR 532 at 540.

48.

Jvancich v Kennedy (No 2) [2004] NSWCA 397; Re Sherborne Estate (No 2); Vanvalen v Neaves [2005] NSWSC 1003.

49.

Jvancich v Kennedy (No 2), ibid.

50.

Moussa v Moussa; Carey v Robson (No 2); Bartkus v Bartkus [2010] NSWSC 889 at [24].

51.

Morse v Morse (No 2) [2003] TASSC 145; McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484; McCusker v Rutter [2010] NSWCA 318 at [34].

52.

McDougall v Rogers; Estate of James Rogers; Re Bodman [1972] Qd R 281; Shearer v Public Trustee (SC(NSW), Young J, 21 April 1998, unreported).

53.

See, for example, Mangraviti v Jackson [1999] NSWSC 804; Scalone v Scalone [2000] NSWSC 1028; Stern v Engel [2001] NSWSC 1025; Halton v Clayton [2005] NSWSC 1269; Piras v Egan [2006] NSWSC 328; McCormick v O’Brien [2007] NSWSC 131; Cassaniti v Cassaniti [2008] NSWSC 258; Tiedeman v Tilse [2009] NSWSC 234; Mayfield v Public Trustee [2009] NSWSC 330; Evans v Levy [2010] NSWSC 504; McCleary v Metlik Investments [2015] NSWSC 1043; Yee v Yee [2016] NSWSC 360.

54.

For example, no order as to costs: Reddie v Cornock [2005] NSWSC 187; Ray v Greenwell [2009] NSWSC 1197; Dugac v Dugac [2012] NSWSC 192; Underwood v Gaudron [2014] NSWSC 1055. This decision was upheld on appeal: see Underwood v Gaudron [2015] NSWCA 269; no order against the plaintiff: Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003; Bowditch v NSW Trustee & Guardian [2012] NSWSC 275; Harkness v Harkness (No 2) [2012] NSWSC 35 (small estate); Vo v Lai [2013] NSWSC 1639; letting costs lie where they fall: Moussa v Moussa [2006] NSWSC 509; Bevilacqua v Robinson (No 2) [2008] NSWSC 520; Ray v Greenwell [2009] NSWSC 1197; the plaintiff’s costs be paid out of the estate: Collings v Vakas [2006] NSWSC 393; Revell v Revell [2016] NSWSC 947; and plaintiff to pay his own costs: Plaska v Coffey [2014] NSWSC 1930.

55.

Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003; Dalton v Ellis (2005) 65 NSWLR 134; Re Vukic (2006) 65 NSWLR 370; Mannix and Nudd v Mannix [2008] NSWSC 1228; Gill v Smith [2007] NSWSC 832; Duffy v Duffy [2014] NSWSC 216; McCarthy v Tye [2015] NSWSC 1947; Estate of Joan Esme Little [2015] NSWSC 1913.

56.

Rutter v McCusker [No 2] [2009] NSWSC 71; and see Uniform Civil Procedure Rules 2005 (NSW) r 42.25.

57.

[2012] NSWSC 35 at [18].

58.

[2009] NSWSC 1197 at [17].

59.

Lacey v Public Trustee (NT) [2010] NTSC 1.

60.

[2014] NTSC 6.

61.

[2011] NTSC 5.

62.

See O 91 of the Uniform Civil Procedure Rules 1900 (Qld).

63.

Re Chapman [1918] St R Qd 226; Re Sharp [1923] St R Qd 102; Re McCreedy [1938] St R Qd 293; Re Milanovic [1973] Qd R 205.

64.

Re Bodman [1972] Qd R 281; Re Klease [1972] QWN 44; Re Foote (SC(Qld), Macrossan J, OS No 460/79, 25 March 1980, unreported); Re Lack [1981] Qd R 112; Alagiah v Crouch [2015] QSC 313.

65.

[2009] QSC 107 at [34], [37] and [54].

66.

(2005) 65 NSWLR 268; [2005] NSWSC 1003.

67.

(1993) 114 ALR 521; 67 ALJR 708 at 709.

68.

Underwood v Underwood [2009] QSC 107 (costs fixed); Jones v Jones [2012] QSC 342 (capped); DW v RW (No 2) [2013] QDC 189 (capped).

69.

Ibid; Cerneaz v Cerneaz (No 2) [2015] QDC 73 (capped).

70.

[2003] TASSC 145 at [4].

71.

[2005] VSC 383.

72.

Bowyer v Wood (2007) 99 SASR 190 at 210, 211; [2007] SASC 327.

73.

[2003] TASSC 145 at [4].

74.

(1916) 12 Tas LR 11.

75.

[2009] TASSC 32.

76.

[2005] TASSC 102.

77.

Re Maslin [1908] VLR 641; Re McGoun [1910] VLR 153; Re Roberts [1919] VLR 125; Re Kennedy [1920] VLR 513; Re De Feu [1964] VR 420; Dobell v Van Damme [1982] VR 425; Re Lago [1984] VR 706.

78.

[2002] VSC 84.

79.

[2005] VSC 383; [2006] VSC 226.

80.

See, for example, Re Whitfield [1937] VLR 17.

81.

[2011] VSC 275; see also Briggs v Mantz (No 2) [2014] VSC 487.

82.

[2014] WASC 152 at [32].

83.

(SC(WA), White J, No 2671/89, 11 February 1992, unreported).

84.

Ibid at [56].

85.

[2014] WASC 272.

86.

At least in New South Wales and Victoria.

87.

Ibid at [32].

88.

Re T Donnelly (1927) 44 WN(NSW) 72; Leue v Reynolds (1986) 4 NSWLR 590; Johnston v Johnston (1987) 11 NSWLR 38; Laursen v Laursen [2009] QSC 30; [2009] 2 Qd R 148; Daniels v Hall (No 2) [2014] WASC 272. See Re Nielsen [1968] Qd R 221; Dobell v Van Damme [1982] VR 425; Krause v Sinclair [1983] VR 73.

89.

Laursen v Laursen [2009] 2 Qd R 148; [2009] QSC 30.

90.

Uniform Civil Procedure Rules 2005 (NSW) r 42.1; and see Rutter v McKusker [No 2] [2009] NSWSC 71; and Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327.

91.

Vic Act s 97(7); and see Re Sitch (No 2) [2005] VSC 383.

92.

Fox v Burvill (1955) 29 ALJ 414; Re De Feu [1964] VR 420; Re Lack [1981] Qd R 112; Re Prakash [1981] Qd R 189; Dobell v Van Damme [1982] VR 425; Krause v Sinclair [1983] VR 73.

93.

Re McCrory [1925] VLR 298; Re Oakley [1986] 2 Qd R 269; Re McPherson [1987] 2 Qd R 394; McEvoy v Public Trustee (1989) 16 NSWLR 92.

94.

[1981] Qd R 112.

95.

[1964] VR 420.

96.

[1981] Qd R 189.

97.

[1973] Qd R 205 at 207.

98.

See Table 2.5 for a list of successful cases.

99.

See 10.2.

100. Re Shannon (1935) 35 SR(NSW) 516; In re Shrimpton [1962] NZLR 1000. 101. (1989) 16 NSWLR 92. 102. Coates v NTE&A (1956) 95 CLR 494; Re Hall (1959) SR (NSW) 219; Bowcock v Bowcock (1969) 90 WN (Pt 1) NSW 721; Hutchinson v Elders Trustee Co (1982) 8 Fam LR 267; Hunter v Hunter (1987) 8 NSWLR 573; Churton v Christian (1988) 12 Fam LR 386. 103. Dehnert v Perpetual Executors and Trustees (1954) 91 CLR 177; Goodman v Windeyer (1980) 144 CLR 490; 54 ALJR 470. 104. See, for example, Hughes v NTE&A (1979) 143 CLR 134; 53 ALJR 249; and Phillips v James (No 2) [2014] NSWCA 135. 105. Cooper v Dungan (1976) 50 ALJR 539. 106. Dijkhuijs v Barclay (1988) 13 NSWLR 639. 107. Re Salathiel [1971] QWN 18; Kozlowski v Kozlowski [2013] SASCFC 112.

108. [2015] NSWCA 42. 109. Re McIntyre [1993] 2 Qd R 383. 110. Re CK [1950] GLR 296 at 300; Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 (CA); Freeman v Jacques [2005] QCA 423; [2006] 1 Qd R 318. 111. Black v McIntyre [1991] ACL Rep 395 Qld 20. 112. Re Just [1938] St R Qd 93; Fox v Burvill (1955) 29 ALJ 414; Dun v Dun (1959) 100 CLR 361. In Fox v Burvill all parties consented. 113. Barrett v Thurling [1984] 2 NSWLR 683; Re Marstella [1989] 1 Qd R 638. 114. Boyce v Humphreys (1974) 48 ALJR 229; Black v McIntyre [1991] ACL Rep 395 Qld 20; Daniel v Van Zwol [2015] SASFC 93. 115. Re Duncan [1939] VLR 355. 116. Scales’ case (1962) 107 CLR 9; Re Just [1938] St R Qd 93. 117. Sampson v Sampson (1945) 17 CLR 576; Dun v Dun (1959) 100 CLR 361. 118. (1955) 29 ALJ 414. 119. Public Trustee v Willis [1924] GLR 238; Re Baker [1962] NZLR 758. 120. Re Koehler [1920] NZLR 257. 121. Curtis v Adams [1933] NZLR 385. 122. Re J [1947] Arg LR 496. 123. M M Phillips and E H Trebilco, Delivery and Taxation of Bills of Costs, 3rd ed, Law Book Co, Melbourne, 1932, p 64. 124. Michie v Hopcraft (1910) 12 GLR 727; Re Brasnett [1941] QWN 32. 125. Re Brasnett [1941] QWN 32. 126. Supreme Court Rules (NT) r 63.29; Uniform Civil Procedure Rules 1999 (Qld) rr 703, 704. 127. Re Heaslop [1948] QWN 10. See also Kroehn v Kroehn (1912) 15 CLR 137 at 141; Barnes v Davies (1929) 30 SR (NSW) 5. 128. Re Cameron (1905) 8 GLR 428; Re McGoun [1910] VLR 153; Re Fletcher [1921] NZLR 649; Re Sharp [1923] St R Qd 102; Re Hall [1941] QWN 3; Re Scott [1950] VLR 102; Re Nielsen [1968] Qd R 221; Reeves v Berge Phillips (1982) 7 Fam LR 940; Krause v Sinclair [1983] VR 73; Lewis v Rogers [2013] VSC 493. 129. Re Newell (1932) 49 WN (NSW) 181. 130. Re Hall (1959) SR (NSW) 219; Re Bowcock [1968] 2 NSWR 700; Bowcock v Bowcock (1969) 90 WN (Pt 1) NSW 721. 131. Mitchell v Hamilton [2005] NSWSC 1097. In this case the personal representative’s costs were reduced from approximately $47,000 to around $20,000.

132. Collett v Knox [2010] QSC 132 at [174]. 133. Re Raybould [1961] QWN 47. 134. Re McGregor [1956] St R Qd 596. See also Re Duncan [1939] VLR 355. 135. Re Woodman (1940) 11 ABC 159; Re Linning [1995] 1 Qd R 274. 136. See 7.28 for other terms used to describe this office in the jurisdictions covered by this text. 137. Murray v Kirkpatrick (1940) 57 WN (NSW) 162. 138. Paxton v Nicholson [1918] GLR 393; Re McGregor [1956] St R Qd 596; Re Due [1977] 1 NZLR 696; Little v Angus [1981] 1 NZLR 126. 139. Re McGregor [1956] St R Qd 596.

[page 411]

Procedure

11

Introduction 11.1 Each jurisdiction’s procedure for making an application is discussed below. Routine applications only are described. No attempt has been made to address procedural issues exhaustively.

Australian Capital Territory 11.2 In the Australian Capital Territory, the ACT Act regulates applications for family provision out of the estate of a testator. The principal concept of the legislation, as stipulated in s 8(1), is that: … if the [ACT Supreme] Court is satisfied that adequate provision is not available under the terms of the will of a deceased person or under the law applicable on the death of a person as an intestate or under the will and that law, from the estate of the deceased person for the proper maintenance, education, or advancement in life of the person by whom or on whose behalf the application is made, the Court may, in its discretion and having regard to all the circumstances of the case, order that such provision as the Court thinks fit be made out of the estate of the deceased person.

Under s 8 of the Act, therefore, the territory’s Supreme Court may make orders in respect of applications made by or on behalf of those entitled to apply to the court under s 7. Family provision applications must be made within a year from

the date of grant of probate or letters of administration (whichever is the case): s 9(1). The court can grant requests for an extension of time for an application: s 9(1). However, requests for an extension cannot be made after the final distribution of the estate: s 9(4). [page 412]

Procedure for application 11.3 Family provision applications must be commenced by filing an originating application in the Supreme Court: r 35(3)1 (see item 1(a) in Appendix I). The originating application must state specifically orders or other relief sought: r 60. In claiming relief, the plaintiff (that is, the applicant) should state in the originating application the orders sought, namely that he or she is seeking an order, pursuant to s 8 of the Act, that he or she be provided for under the deceased’s will: r 60(8). The originating application must list the affidavits to be relied on by the plaintiff: r 60(4). A sealed copy of the originating application must be served personally on the defendant: r 61. The supporting affidavits also must be filed and served: r 64. Service of the application must be at least five days before the return date for the application: r 62. The originating application remains in force for a period of one year from the date it is lodged for filing: r 74. The defendant must file a notice of intention to respond (see item 2(a) in Appendix I) before it can take any steps in the proceedings: r 100(3). A notice of intention to respond must be filed on or before the return date or seven days after the refusal of any unsuccessful application made by the defendant to have the

originating application set aside: r 102(3). A sealed copy of the notice of intention to respond must be served on the plaintiff’s address for service on the day it is filed in the court: r 102(5). In filing the notice of intention to respond, practitioners should note that defendants would be well advised not to submit to the orders of the court unless they are prepared to waive their rights to raise a defence or be heard on quantum. Family provision applications are classed as ‘Category C’ matters and are therefore subject to case management directions: r 1302. The matter will be listed for a directions hearing within 28 days of the date of filing the notice of intention to respond: r 1303. Sample directions are found at r 1401 and include: 1.

whether any other parties should be joined;

2.

the filing of affidavits in support of the parties’ respective cases.

A short minute of orders should be prepared before the directions hearing (see item 3(a) in Appendix I). The court will retain supervision of the matter through the directions hearing list until such time as it is ready for hearing (see below). The plaintiff’s affidavit will specify the facts which support his or her application (see item 4(a) in Appendix I). It should set out: 1.

the plaintiff’s relationship to the testator coupled with proof of that relationship;

2.

the date of the testator’s death; [page 413]

3.

the date of grant of probate or letters of administration (if applicable);

4.

the amount and nature of the assets pertaining to the estate (a copy of the inventory that was lodged with the application for administration should be attached);

5.

the personal details of the plaintiff and of the testator’s next of kin;

6.

the provision made for the plaintiff in the will (if any);

7.

the plaintiff’s financial position at the date of the testator’s death and at present;

8.

the plaintiff’s lifestyle;

9.

the plaintiff’s state of health;

10. the plaintiff’s moral claims on the estate (if any); 11. the plaintiff’s response to the explanations given by the testator in the will as to the way he or she intended the estate to be distributed (if any). The defendant’s affidavit will, in general, reply to matters raised in the plaintiff’s affidavit and provide financial details of the estate both at the time of the testator’s death and at present. Note that if the annexures to the affidavit total more than 20 pages they must be made an exhibit to the affidavit: r 6712. Once all interlocutory steps have been completed, either party can issue a certificate of readiness: r 1306. If the certificate is completed by the other parties and filed, the matter will be taken out of the directions hearing list and will be set down for a listing hearing: r 1306. If the certificate of readiness is not completed by the other parties, the issuing party can seek an order at a directions hearing that the matter be set down for a listing hearing even though a certificate of readiness has not been filed: r 1303(4). At the listing hearing, the court may consider the following matters: 1.

simplifying the issues in dispute;

2.

limiting the number of witnesses or issues to be covered by witness evidence;

3.

the filing and serving of expert reports;

4.

the filing and serving of affidavit evidence;

5.

the admission of facts or documents;

6.

written submissions;

7.

the estimated length of trial;

8.

the possibility of settlement;

9.

any other matter that may assist in early resolution of the proceeding.

The court may either make further directions or set a date for the trial. Once a hearing date has been allocated, each party will have the opportunity to cross-examine any deponent so long as notice is given to the party concerned. [page 414] The plaintiff must, no later than 14 days before the trial date, file a copy of the court book (r 1312), consisting of: 1.

the originating process and each pleading in the proceeding;

2.

any requests for further particulars and answers to those requests;

3.

any third-party notice or notice claiming contribution or indemnity;

4.

any order to include a party;

5.

any affidavit to be relied upon at the trial.

Only the most recently amended version of each document should be included. The court book may also include experts’ reports (including medical reports) and answers to interrogatories, but only if all parties to the proceeding agree. The matter will be argued before the court and the court will reach a decision.

Current judicial interpretation of procedure for family provision applications in the Australian Capital Territory 11.4 The law to be applied in determining a claim pursuant to s 8 of the ACT Act was analysed in depth by Higgins J in Hackett v Public Trustee for the Australian Capital Territory,2 an analysis which was closely followed by Connolly M in Birrell v Birrell.3 After an extensive examination of the authorities, his Honour concluded that: … the question is whether as at the date of the order, which must practically equate with the date of hearing, it appears to the court that adequate provision has not been made for the ‘proper’ maintenance etc of the eligible person and, if not, what provision is to be made, if it is available. That conclusion is strengthened by the provisions of s 8(3), entitling the Court to refuse an order by reason of conduct or character which ‘disentitles’ the applicant. That assumes that, but for that character or conduct, an order for further provision would be made … [The Act] requires a balance between the established claims of named beneficiaries, the needs of the applicant, the size of the estate and, of course, the benefits provided otherwise to the applicant and others with legitimate claims on the testator’s bounty … The Court’s role goes no further than the making of ‘adequate’ provision in all the circumstances for the ‘proper’ maintenance etc of an eligible applicant.

New South Wales

11.5 Chapter 3 of the NSW Act commenced on 1 March 2009 and applies to the estates of persons who died on or after that date. The Family [page 415] Provision Act 1982 (which came into force on 1 September 1983) was repealed by the Succession Amendment (Family Provision) Act 2008 but continues to apply with respect to the estates of persons who died before 1 March 2009. Applications made under Ch 3 of the NSW Act are usually commenced in the Supreme Court but may also be instituted in the District Court pursuant to s 134(1)(c) of the District Court Act 1973. Claims though are rarely, if ever, now brought in the District Court partly because that court has a jurisdictional limit of $250,000 (s 134(2) of the 1973 Act) but principally because since 1 March 2013 the Supreme Court has established a Family Provision List conducted by the Family Provision List Judge which offers efficient and effective case management for dealing with family provision disputes. It should be noted that the District Court no longer has jurisdiction to hear claims brought under the repealed NSW 1982 Act. Since claims commenced in the District Court are now few, this summary will focus only on claims commenced in the Supreme Court. Apart from the (general) operation of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 relating to practice and procedure, family provision practice and procedure is governed by Schedule J of the Supreme Court Rules 1970 (operational from 1 June 2009) and Supreme Court Practice Note SC Eq 7 (effective from 1 March 2013). There is some overlap between Schedule J and the Practice Note. The Family Provision

List Judge conducts the Family Provision List every Friday: Notices of Motion are listed at 9.30am and Directions at 10.00am. An application for a family provision order must be commenced by summons (which should bear an endorsement identifying the date of the death of the deceased person) filed in the Equity Division. The summons must join as a defendant any administrator (this appellation includes any executor and, where appropriate, the person appointed to represent the estate of the deceased person for the purposes of the hearing), unless the plaintiff is the sole administrator but must not join any person unless there is sufficient reason for doing so.4 Notwithstanding this direction, the court may, at any stage of the proceedings, direct that any person be added as a party or substituted for another party or that notice of the proceedings be served on any person in addition to or instead of the defendant.5 It will be convenient to note that s 58 of the NSW Act provides that an application for a family provision order may be made whether or not administration of the estate has been granted. Where, therefore, the time for making the application is about to expire and the appointed executor has not obtained a grant the plaintiff should file a summons to protect his or her interests. Or there may be no one willing to apply for a grant (this may occur because the deceased left no estate so that [page 416] the claimant is left to seek orders in respect of notional estate); in those circumstances the plaintiff may apply for a limited grant of probate or administration to be dealt with pursuant to s 91 of the NSW Act. A plaintiff who applies for a family provision order under Ch 3

must, unless he or she is the administrator, when serving the application, also serve a notice on the administrator showing who, in his or her opinion, is or may be an eligible person (designating as a person under legal incapacity any eligible person who, in his or her opinion, may be a person under legal incapacity).6 The summons will be made returnable before the Family Provision List Judge no later than the first Friday after 28 days of the date of filing, this being the first directions hearing. At the time the plaintiff files and serves the summons he or she must also file and serve a copy of the affidavit of the plaintiff adapted in the form annexed to the Practice Note (this being the affidavit in which the plaintiff proves the various matters necessary for the making of a family provision order including each of the matters, where relevant, adverted to in s 60(2)); a copy of the notice of eligible persons; and 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. 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 affidavits and notice no later than five working days before the first directions hearing or at such other time as the court may order. At the first directions hearing the court may make directions including the service of the administrator’s affidavit, which affidavit must include: a copy of the deceased’s will and probate or letters of administration; a description of the nature and value of the assets and liabilities of the deceased at the date of death;

what is, or is likely to be, the nature, and an estimate of the value of the assets and liabilities of the deceased at the date of swearing the affidavit, any property of the deceased that has been distributed after the death of the deceased and the date of distribution and the gross distributable estate (omitting the cost of the proceedings); a description of the nature, and an estimate of the value of any property which, in the administrator’s opinion, is, or may be, the subject of any relevant property transaction; the name and address of every person who, in the administrator’s opinion, is holding property as trustee or otherwise which is, or may be, the subject of any relevant property transaction; [page 417] any testamentary and other expenses, or other liabilities of the estate that have been paid out of the estate of the deceased, including the amount, if any, paid for, or on account of, the administrator’s costs of the proceedings; whether any commission is to be sought by the administrator, and if so, an estimate of the amount proposed to be sought; and the name and address of every person who, in the administrator’s opinion, is, or may be, an eligible person, an eligible person under a legal incapacity, a person beneficially entitled to the distributable estate and a person holding property as trustee or otherwise. The administrator will be required to file and serve four further affidavits, being: An affidavit of service setting out the name and address of every person to whom notice of the plaintiff’s application has been

given — they being any person who is or may be an eligible person as well as any person entitled to the distributable estate or any person holding property as trustee or otherwise, and the method by which such notice has been given. (Schedule J cl 4(2) provides that the administrator must serve a notice in the form prescribed in subclause (3) upon the surviving spouse and every child of the deceased person, every person who is entitled to share in the distributable estate, any person mentioned by the plaintiff in the notice served with the summons and any other person who in the opinion of the administrator, is or may be an eligible person.) One affidavit in reply to the plaintiff’s affidavit in chief, which affidavit may include allegations of facts, contradicting facts alleged in the plaintiff’s affidavit in chief or any other matters of fact to be relied upon by the administrator. An affidavit, if necessary on information and belief, which identifies each beneficiary who is raising, or is likely to raise, his, her, or its, financial, material, or other circumstances as a competing claimant, and each beneficiary who is not raising, or is not likely to raise, those circumstances. An affidavit setting out an estimate of the administrator’s costs and disbursements, calculated on the indemnity basis, up to, and including, the completion of a mediation. The purpose of these directions will be to ensure that the parties have sufficient material upon which to conduct a mediation but which attempts to moderate the costs involved up to that point. Unless otherwise ordered all proceedings will be referred to mediation — whether a court-annexed mediation or a private mediation. A mediation will not be required where the court conducts a judicial settlement conference or where the matter is referred out for mutual evaluation. The Family Provision Practice Note sets out directions where

the proceedings settle and provides for further directions following [page 418] mediation or settlement conference where the proceedings are not resolved. The Practice Note should be referred to. Orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the net distributable value of the estate (excluding costs of the proceedings) is less than $500,000. Paragraph 21 of the Practice Note provides for the cheap and efficient proof of certain matters — for example, a kerbside appraisal by a real estate agent of any real property rather than the obtaining of a valuation; internet advertisements of the asking price of real estate; the plaintiff’s (or beneficiary’s) best estimate of any renovation or refurbishment of property the plaintiff (or beneficiary) is to incur; a description by the plaintiff (or beneficiary) of any physical or other disability which it is alleged the plaintiff (or beneficiary) is suffering, together with a copy of any medical (or other) report in support of the condition alleged. If a family provision order is made, whether by consent or otherwise, an administrator must, unless the court otherwise orders, within 28 days after the order is recorded in the court’s computerised court record system, lodge in the Probate registry the probate, letters of administration etc.

Application made in the Supreme Court 11.6

Any application for relief under ss 58 and 59 of the NSW

Act is made in the Equity Division of the Supreme Court7 or in the District Court Non-specialist List.8 Schedule J of the Supreme Court Rules 1970 (NSW) applies to proceedings brought in each jurisdiction.

Nature of the procedure 11.7 The procedure follows the Supreme Court practice as discussed below: 1.

Proceedings on an application for relief under the NSW Act must be commenced by summons.9

2.

While it is not necessary for a grant of administration to have been made prior to the commencement of the proceedings, it is usual for this to occur. It is not normally proper to commence the proceedings before a grant of administration since the administrator must be joined as a defendant (Supreme Court Rules Pt 70 r 77). If it is intended to commence proceedings before the grant of administration, then no defendant should be named or an order sought that the likely administrator be named as a party/defendant to represent the estate for the purposes of the hearing. [page 419] A grant of administration must be made before orders can be made under the Act.10

3.

At the hearing (before the registrar): (a) all affidavits may be filed in court; (b) further directions, if any, will be given;

(c) where one or more parties have failed to comply with the directions for serving affidavits, a direction may be given that no further affidavits be served or filed without the leave of the court; (d) the proceedings can be placed into the associate justice’s call-over for determination; (e) usually mediation will be directed. 4.

There is, at the present time, a delay of between six and eight months approximately between the date of placing the matter in the associate justice’s call-over and the date of callover. There is then another two- to three-month delay between the date of call-over and the date of hearing.

Discovery and interrogatories 11.8 The procedure for discovery of documents and administering interrogatories is generally not appropriate for proceedings under this Act. In any event, because the proceedings are commenced by summons, the leave of the court is necessary if either interlocutory procedure is sought.

Nature of the evidence to be filed Plaintiff 11.9 It is necessary for the plaintiff to include in his or her affidavit as much information as is possible going to the claim made. That information should include: 1.

the name, address and occupation of the plaintiff;

2.

the date of birth of the plaintiff;

3.

the date of death of the deceased;

4.

the date of the grant of probate of the will or letters of administration;

5.

a copy of the will;

6.

a copy of the inventory of assets of the deceased;

7.

the nature of the plaintiff’s relationship to the deceased;

8.

facts which give rise to the plaintiff’s moral claim for relief;

9.

particulars of any acknowledgments by the deceased as to the plaintiff’s claim upon his or her bounty; [page 420]

10. details of the plaintiff’s spouse or partner’s financial position, including assets, liabilities, income and outgoings; 11. the present and likely future health of the plaintiff, if relevant; 12. evidence relating to any particular form of relief sought by the plaintiff. Where the application has not been made within time and an order is sought under s 58(2) of the NSW Act, facts explaining the circumstances of the plaintiff’s failure to commence proceedings within the prescribed period referred to in s 58(2) should be provided. At the time of service of the summons, the plaintiff should also serve a notice upon the personal representative showing who, in his or her opinion, is, or may be, an eligible person (designating as a disabled person any eligible person who, in his or her opinion, is or may be a disabled person).11

Supreme Court Practice Note SC Eq 7 (Annexure 1) contains a suggested form of a plaintiff’s affidavit. See Carey v Robson (No 2)12 as to the evidence a plaintiff should adduce.

Defendant 11.10 The personal representative must swear an affidavit setting out: 1.

the nature and value of the assets and liabilities at the date of death;

2.

what is, or is likely to be, the nature and value of: (a) any distributed estate; (b) the net distributable estate;

3.

what is the nature and value of any property which, in his or her opinion, is or may be the subject of any prescribed transaction;

4.

the names and addresses of every person who, in his or her opinion, is or may be: (a) an eligible person (designating as a disabled person any eligible person who, in his or her opinion, is or may be a disabled person); (b) a person beneficially entitled to the distributable estate; (c) a transferee or deceased transferee pursuant to s 81 of the Act; (d) a person holding property as a result of a distribution from the estate;

5.

the persons to whom notice was given under the Supreme Court Rules 1970 Sch J cl 9(2).13

[page 421] The personal representative must also serve a notice of claim (in Form 89B) upon: (a) the surviving spouse (if any) of the deceased person; (b) every child of the deceased person; (c) every person not mentioned in subparagraph (a) or (b) who is entitled to share in the distributable estate of the deceased person; (d) any person mentioned by the plaintiff in his or her notice served under subclause (1) and not mentioned in subparagraphs (a), (b) or (c); and (e) any other person who, in his or her opinion, is or may be an eligible person.14 Where any person to be served is a disabled person, the notice must be served in accordance with Pt 63 r 15.15 If there is any evidence which is in answer to the plaintiff’s evidence, this should also be prepared and filed. It is necessary for the plaintiff, shortly prior to the hearing, to serve an affidavit which sets out his or her then financial position. Where assets have been valued, unless there is agreement about the value of those assets, some supporting evidence (such as kerbside valuation etc) should be annexed. It is also necessary for the personal representative to serve an affidavit setting out the value of the deceased’s estate shortly prior to the hearing. Again, where appropriate, unless agreement is reached beforehand, evidence to support the values referred to in the affidavit should be annexed.

Procedure subsequent to the hearing 11.11 After the hearing is completed and, where an order is made under s 59 (not being an interim order),16 s 67 or s 92 of the NSW Act, a personal representative shall, unless the court otherwise orders, within a certain time, lodge in the registry: 1.

the probate, letters of administration or copy of election, as the case may require, bearing a copy of the minute of order; and

2.

a copy of the minute of order.17 The time prescribed for the lodgment is:

1.

where a personal representative is a defendant, 14 days after the date of service of an office copy of the minute of order upon him or her; and

2.

in any other case, 28 days after the order is entered. [page 422]

Draft documents 11.12 Specimens of relevant documents appear as items 1(b)– 6(b) in Appendix I.

Northern Territory 11.13 Applications for the provision out of the estate of a deceased person are made to the Supreme Court of the Northern Territory, irrespective of the size of the estate or the quantum of the provision sought.18

Procedure for application 11.14 The procedure to be adopted in accordance with the Rules of the Supreme Court of the Northern Territory is as follows.

Application by an originating motion 11.15 The application is made by an originating motion between parties in Form 5B, being a matter ‘where by or under an Act an application is authorised to be made to the court’.19 The executors or the administrators of the estate should be named as defendants.20 Evidence is given by affidavit.21 In certain circumstances, the special procedure provided for in r 45.05 may be adopted. This procedure is not appropriate, however, for contested applications.

Proceeding in default of appearance 11.16 If no appearance is filed, the plaintiff may make application for judgment against the defendant for the relief or remedies sought in the originating motion. The plaintiff can only rely, however, on affidavit material served on the defendant with the originating motion.22

Proceeding after appearance 11.17 After an appearance, if one is filed by the defendant, the plaintiff must make further application to the court by summons on originating motion in Form 45A.

In the first instance, the summons will usually be returnable before the master. Rule 45.04(4) provides that the master may: [page 423] (i)

hear and determine the application if it lies within the master’s authority under O 77;

(ii) by consent of the defendant, give the judgment; (iii) refer the application to a judge for hearing and determination; or (iv) place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise.

Pursuant to r 77.01(1)(b)(i), the master has authority to make orders under the NT Act where an order is sought by consent. In contentious matters, it is appropriate for the master to make directions for the filing and service of affidavit material upon which the parties intend to rely and either to adjourn the matter to a later date for further directions or refer the matter to the registrar for allocation of a hearing date. It may also be appropriate for the master to make an order under s 10 of the NT Act that notice of the application be served on other persons such as the beneficiaries of the estate, although the master may not have power to make such an order except by consent. Alternatively, the matter should be referred to a judge for further directions. Indeed, if substantive as opposed to procedural orders are to be sought, the summons may be made returnable before a judge in the first instance.23

Discovery and interrogatories 11.18 The general rules relating to discovery and interrogatories will not apply to applications under the NT Act,

since it will not usually be a proceeding commenced by writ for the purposes of discovery,24 and there will be no pleadings for interrogatories to follow.25 Accordingly, should discovery and interrogatories be considered necessary, directions to that effect should be sought. Affidavit evidence should be provided giving grounds for the request for such directions.

Exceptional cases 11.19 In exceptional cases, it might be considered that pleadings are appropriate in order to properly define the issues between the parties, and that the matter ‘might be in the opinion of the court more conveniently continued as if commenced by Writ’. In such circumstances the court may order that the proceeding continue as if commenced by writ.26 The court may in such circumstances order that any affidavits already filed stand as pleadings or, alternatively, that pleadings be served between [page 424] the parties, and that the parties have discovery of each other. In such cases, subject to any order or direction to the contrary, the usual rules in relation to pleadings, discovery and interrogatories will be applicable.27

Hearing 11.20 Rule 45.02 provides that, in general, the trial of a proceeding commenced by originating motion be by affidavit.

However, the parties may agree or the court may order that evidence be given orally.

Queensland Jurisdictional issue 11.21 Application is made in the District Court where any provision resulting from an order made by the court will not exceed in amount or value the sum of $750,000.28 However, since it is possible for the court to order the whole estate of the deceased to be provided for the maintenance of an applicant, it is usual and prudent for the application to be made in the Supreme Court29 where the net estate exceeds $750,000.

Procedure for application 11.22 Proceedings in both the Supreme and District Courts are the subject of Practice Direction No 8 of 2001 (hereafter ‘the Practice Direction’). The general effect of the Practice Direction may be summarised as follows: 1.

The application is made by originating application in Form 5 of the Uniform Civil Procedure Rules 1999 (Qld) returnable before the court ‘upon a date to be fixed by agreement or failing agreement after notice of not less than 14 days from one party to other parties’, rather than specifying a return date.30 A specimen application appears as item 1(d) in Appendix I. If an applicant desires that the court in its discretion should hear and determine an application, although this is out of time or a grant has not been made,31 such a request should be made in the application and supporting material should be filed.

If an application is instituted outside the time limit, the applicant should include in the application a request that the application be heard and determined by the court notwithstanding that it was [page 425] instituted outside the time limit and supporting material should be filed.32 2.

The application should be filed together with a supporting affidavit by the applicant. The formal requirements of this affidavit are set out in para 7 of the Practice Direction.33 It would be usual in a District Court application to make clear that the District and not the Supreme Court has jurisdiction; that is, that the net assets of the estate do not exceed $750,000.

3.

The application must be served on the personal representative, together with the supporting affidavit(s) and a draft directions order signed by the applicant or the applicant’s solicitors.34

4.

A specimen order giving the usual directions appears at item 2(d) in Appendix I. The draft directions order must contain a dispute resolution plan ‘designed to exhaust the prospects of a consensual resolution of the application’.35

5.

Within 14 days of service of the application, supporting affidavit(s) and draft directions order on the personal representative, he or she must either: (a) sign and return the draft directions order to the applicant or the applicant’s solicitors; or (b) advise the applicant or the applicant’s solicitors of any

matter in the draft directions order with which he or she disagrees and put forward an alternative proposal in respect of that or those matters.36 6.

Within seven days of receipt of the signed draft directions order from the personal representative, the applicant must file it in the registry and the order is operative from that date.37

7.

Any variation of an order, once made, may be sought under the liberty to apply provisions contained in the directions order.38 The parties are specifically required by the Practice Direction to use their best endeavours to resolve any disagreement which may arise over the terms of the directions order and must agree to these terms as quickly as possible.39 [page 426] If, but only if, the parties are unable to agree to the terms of the directions order, either party may list the application before the court upon not less than 14 days’ notice to the other party.40 Contested applications must comply with Qld Practice Direction No 6 of 2004. It is suggested that parties can vary or amend the terms of the directions order by consent.

8.

A request for trial date must be signed by all parties before the matter may be placed on the Callover List. Disclosure may be ordered, as discussed below in 11.23.

Disclosure and inspection of records

11.23 The procedure for disclosure of documents without a court order, contained in r 211, does not apply as the rule has application only: to a proceeding started by a claim; to a proceeding in which the court has made an order under r 14 ordering the proceeding to continue as if started by a claim; or if the court itself directs it. The court has a discretion to order disclosure under r 209(1)(c) and disclosure will be ordered in respect of facts in issue unless cause is shown to the contrary.41 However, no general order for disclosure will be made unless the court considers it necessary to the fair disposal of the issue in question.42 An application for an order for disclosure should not be made until all affidavits in opposition to the applicant’s claim have been filed.43

South Australia 11.24 The procedure to be followed in South Australia depends (to some extent) on the value of the estate.

Application made in the Supreme Court 11.25

All applications are made in the Supreme Court.

There are two classes of claim: ordinary claims where the net estate exceeds $500,000 and small claims where the net estate does not exceed $500,000. [page 427]

Procedure 11.26

Ordinary and small claims are brought as follows:

1.

The application is made either by summons and affidavit in support, or summons and statement of claim. The court prefers small claims to be made by summons and affidavit. A specimen summons to be used with an affidavit appears as item l(e) in Appendix I. The affidavit appears as item 2(e). A specimen summons and statement of claim appear as item 3(e) in Appendix I.

2.

The summons to be used in either case is a summons conforming to Form 2 of the Supreme Court Rules 1987 (SA). The applicant is described as the plaintiff and all executors are made defendants.

3.

At the time of issuing the summons, the following documents must be lodged: (a) the summons and affidavit or summons and statement of claim (as the case may be); (b) an affidavit by the plaintiff setting out the names and current addresses of all persons within s 6 of the Act who may be entitled to claim under the Act in relation to the estate of the deceased and all beneficiaries in the estate of the deceased. A specimen affidavit appears as item 4(e) in Appendix I. There is no reason, however, why this information could not be included in the affidavit appearing as item 2(e); (c) if necessary, an application for extension of time within which to bring the claim and an affidavit in support of that application.

4.

The plaintiff must serve notice of the action on the executors

or administrators, any beneficiary of the estate who might be adversely affected by the claim and each of the other potential claimants. 5.

Upon the filing of a notice of address for service by an executor or beneficiary the court will advise the parties of a hearing date at which the court will give directions to the parties.

6.

A notice to be given to another potential claimant must be in an approved form and must advise the potential claimant (whether or not the potential claimant is already a beneficiary of the estate) of his or her right to make a concurrent claim. A specimen notice appears as item 5(e) in Appendix I.

7.

Within 28 days after the service of the notice, a potential claimant may file a statement of claim in the court stating the basis of his or her claim for provision out of the estate. A specimen statement of claim appears as item 6(e) in Appendix I.

8.

The executor and any beneficiary may file a defence to the claim of the plaintiff. A claimant may file a defence against the claim of another claimant. [page 428]

9.

The plaintiff and each of the potential claimants who files a statement of claim become plaintiffs in the action.

10. The executor and all beneficiaries are defendants in the action. 11. A person may be both a plaintiff and a defendant in the same

action and (where a person is both an executor and a beneficiary) may have a separate notice of address for service for each capacity. 12. Within 21 days after filing a notice of address for service the executor or administrator must file an affidavit stating the assets and liabilities of the estate and exhibiting a copy of the probate or letters of administration. 13. Where a claimant’s claim is out of time the claimant must also file an application seeking an extension of time and an affidavit in support. 14. When the matter first comes before the court, the master will make such orders as are necessary to ensure the orderly filing of pleadings. The master will make an order that the parties attend a settlement conference. If the matter cannot be resolved at the settlement conference, steps are then taken for the completion of pleading, discovery and interrogatories and for the matter to be set down for trial. 15. Full details of the procedure are set out in r 312 of the Supreme Court Rules 1987 (SA).

Discovery 11.27 Unless the court otherwise orders, each party shall within 21 days running from the end of the settlement conference or, if there is no settlement conference, from the close of pleadings, disclose the documents that are or have been in the party’s possession that are directly relevant to any issue raised in the pleadings or are to be disclosed by order of the court: see r 136. The list of documents must conform with Form 20 of the Supreme Court Rules 1987 (SA).

Interrogatories 11.28 The court may make an order for the pre-trial examination of a party by written questions. The application for the pre-trial examination of the party must be made after the close of pleadings but before 28 days have expired after all parties have made disclosure of documents. Full details of the procedure with respect to the pre-trial examination by written questions are set out in rr 150, 151 and 152.

Discovery against a person not a party and before action 11.29 The court may make an order that a person who is not a party to the proceedings disclose to the court whether he or she is or has been in possession of relevant evidentiary material and the court may make orders to produce the same or give the court any information about [page 429] the present whereabouts of the material: r 146. The court may also, prior to proceedings being commenced, make orders for the gathering of evidentiary material (r 147) and may make orders for the seizure of such evidentiary material: r 148. The court may also make orders for the custody and control of evidentiary material: r 149.

Tasmania 11.30

1. The application is commenced by an application to a

Judge in Chambers: Supreme Court Rules 2000 r 90(zf). 2.

The respondent is the personal representative of the estate.

3.

On the first return date, the court will normally order that the personal representative make, file and serve an affidavit annexing a copy of probate, a copy of the death certificate, a copy of the short form affidavit of assets and liabilities and stating the names and addresses of the beneficiaries together with details of any persons (other than the applicant) who is eligible to make a claim. The applicant may be placed on a timetable for the filing of his or her affidavit material at this or the next directions hearing.

4.

Following the filing of the personal representative’s affidavit, the court at the next directions hearing will determine who should be served with notice of the application. Normally, all beneficiaries and persons are eligible to make a claim. Where there are minor bequests, often the applicant waives any claim against that part of the estate so as to avoid the extra cost of that beneficiary being a party. Normally notice is given by utilising Form 6 of the Supreme Court Forms. Usually the order requires the originating application and all affidavits filed to be annexed to the form. At this stage, the applicant will normally be put on a timetable for filing any affidavit on which he or she intends to rely.

5.

Normally by the next directions hearing any persons wishing to participate will have entered an Appearance and will therefore be represented at the directions hearing. Normally those parties are then made respondents to the originating application. At that directions hearing, it is usual for a timetable to be set for the respondents to make, serve and file any affidavits on which they intend to rely.

6.

If any party seeks discovery then application has to be made

pursuant to r 386 of the Supreme Court Rules 2000. Discovery as of right is only available in an action as defined which does not include an originating application. Any application for discovery will need to specify the class of documents sought to be discovered. As there are no pleadings to identify the issues, general discovery will not be ordered. 7.

Interrogatories may be administered as of right, however, under r 408A of the Supreme Court Rules 2000, a party interrogated [page 430] may give notice to a party interrogating that some or all of the interrogatories will not be answered unless administered with the leave of the court or a judge.

8.

Once the respondent’s affidavits are filed and served, there may be a process of answering affidavits until all evidence the parties wish to put before the court is finalised.

9.

The court will then generally order a mediation pursuant to the Alternative Disputes Resolution Act 2001.

10. If the matter resolves by agreement (at mediation or otherwise) then the agreement can be given effect to by court orders provided there is sufficient material put before the court either in the form of affidavit evidence or by way of agreed facts for the court to be satisfied that it has jurisdiction and it is appropriate to make the order sought. 11. If the matter does not resolve at mediation then it is set down for trial normally with the evidence in chief to be by affidavit.

12. If orders are made either by consent or as a result of a trial, the orders are required to comply with s 9 of the Tas Act which requires that an order specify inter alia: (a) the amount and nature of such provision; (b) the manner in which such provision shall be made or be raised or paid out of some and what part of the estate of the deceased person; (c) how and by whom the burden of such provision shall be borne; and (d) any conditions, restrictions or limitations imposed by the court or a judge. 13. In addition every order must state that a certified copy of such order be made from the probate of the will or letters of administration with the will annexed of the estate of the deceased person.

Victoria Preliminary matters 11.31 The relevant legislation is contained in the Vic Act Pt IV as amended, and references to sections are to this legislation. The relevant rules of court are contained in Ch II of the Rules of the Supreme Court of Victoria O 16, which deals with applications for family provision. References to the rules are references to Ch II O 16 and references to rules appearing in Chs I and II are identified as such. The procedure is as follows: 1.

The application is made by originating motion issued against each personal representative as defendant, save where the plaintiff is the

[page 431] sole personal representative, in which case the defendant is to be a person having a substantial interest in opposing the application.44 2.

No proceedings can be commenced until a general grant of probate or letters of administration has been made. If the executor has failed to make application for probate, thereby preventing a plaintiff from commencing his or her application for family provision, it may be necessary to bring proceedings under s 15 of the Vic Act to oblige the executor either to prove the will or renounce probate.

3.

The originating motion must be issued within six months of probate or administration being granted.45

4.

There is a widely held misconception that a caveat should be lodged to secure the position of a potential applicant for family provision and prevent the six-month period from running against him or her unnoticed. This is counterproductive because: (a) it holds up any grant of probate or letters of administration, and so prevents the application for family provision from being issued; and (b) it will result in the application for a grant being referred to the Practice Court, where the caveator will be ordered to pay costs if it turns out that he or she has no basis for objecting to a grant being made and was simply trying to protect himself or herself against having the six-month period slip by unnoticed.

5.

The appropriate procedure for an intending applicant is set out in the Administration and Probate Rules, being Ch III of

the Rules of the Supreme Court. Rule 6.07 enables any person who intends to make a claim against a deceased estate for family provision to lodge with the Registrar of Probates a notice requiring the registrar to give to him or her notice of the making of the grant. Upon receipt of the notice, the applicant will then be aware that the six-month period within which the proceedings must be commenced has started to run. The form of notice appears as item 1(g) in Appendix I. 6.

The notice remains effective for only 12 months.

Application to the Supreme Court or County Court 11.32 The application is issued in the Supreme Court or the County Court. The jurisdictional limit of the County Court was abolished by the Courts Legislation (Jurisdiction) Act 2006 (Vic). The procedure in the County Court is different and readers should consult County Court Practice Note PNC1 4-2010 Operation and Management of the Family Property Division. This Practice Note is available at . What follows is a description of the procedure in the Supreme Court. [page 432]

Procedure 11.33 1.

The procedure is as follows:

The application is made by originating motion in Form 5B of the forms prescribed by Ch I of the Rules of the Supreme

Court of Victoria, being the form prescribed by r 5.02 for use in an originating motion between parties. A specimen application appears as item 2(g) in Appendix I. 2.

(a) Within seven days after an appearance has been entered in the proceeding, a summons for directions must be issued by the plaintiff, and no further step is to be taken until directions have been given.46 If the plaintiff fails to issue the summons, the defendant may do so.47 (b) A specimen form of summons for directions appears as item 3(g) in Appendix I.

3.

(a) The directions hearing takes place before an Associate Justice of the Supreme Court. All directions necessary for the particular case will be given on this occasion.48 (b) The court should be informed about the following matters: (i)

the relationship of the plaintiff to the deceased;

(ii) the size of the estate; (iii) the takers pursuant to the will or on an intestacy whose entitlements in the estate may be reduced or defeated in the event of the plaintiff’s application being successful; (iv) the nature of the relief which the plaintiff seeks; (v) whether all necessary persons are already parties or whether they should be notified by letter in the form of the Notice in the Schedule to the orders. To this end counsel or solicitor appearing for the personal representative, being the existing defendant, should be in a position to inform the court of the address of any beneficiaries to whom notice may need to be sent,

whether any of the beneficiaries are minors, and whether by reason of ties of relationship or marriage, the existing defendant will be a sufficient representative for any beneficiaries whose interests are at risk. (c) In addition to recording the nature of the relief which the plaintiff seeks in Other Matters and making any directions ensuring that the proceeding is properly constituted, directions are given prescribing the time within which the affidavit material in support of the plaintiff’s claim, the affidavit material [page 433] in opposition, and the plaintiff’s affidavit material in reply, must all be filed and served. The directions also provide for a court-ordered mediation and require the defendant to file and serve an affidavit setting out the current financial position of the estate during the period of 14 days prior to the mediation and the trial date. (d) The practice in Victoria is that orders for discovery are made in family provision applications only in extraordinary cases where, for some particular reason, this process is required. It is usually not appropriate to seek such orders on the first directions hearing, for the affidavit material from both sides will not have been filed. The directions that are given always reserve liberty to the parties to apply, and in the event of a party failing to comply with the time limits laid down in the directions, or any application for discovery needing to be made, this will be dealt with by bringing the summons on for further hearing as the interlocutory stages of the

proceeding take place. (e) It is frequently the case that representatives of the parties will have conferred prior to the directions hearing and will hand up to the court draft minutes of proposed consent orders. To assist in this task readers are referred to Victoria’s item 4(g) in Appendix I. (f)

The parties should complete a Request for Authentication Form and hand it to the Associate so as to obtain an authenticated copy of the directions hearing orders.

Affidavit in support of the plaintiff’s claim 11.34 The following comments are relevant to the affidavit material filed in support of the plaintiff’s claim: 1.

This material constitutes the whole of the evidence in chief in support of the claim. While it is customary at trial to have the plaintiff give supplementary oral evidence to bring up to date the information contained in the affidavits concerning his or her financial position and any other relevant matters, this should not raise any novel matters. Accordingly, the affidavit should be comprehensive.

2.

The contents of the affidavit will depend upon the particular circumstances of each case. Section 91(4) of the Vic Act specifies a number of matters that the court is required to consider, not all of which will be relevant in every case, but the following matters ought to be addressed: (a) The date of death of the deceased, and the place of the deceased’s domicile at the date of death (which determines

[page 434] whether the court has jurisdiction to deal with the personal property in addition to the real property).49 (b) The names and relationship of the relevant members of the family who, with the plaintiff, survived the deceased. It may be helpful to include the age of each of these persons. (c) The assets comprising the estate. The plaintiff will not necessarily have detailed information about these, but a copy of the inventory filed in the application for probate or administration should be exhibited to the affidavit. (d) Where the plaintiff disagrees with the values ascribed to assets such as real property, or alleges that there are other assets of the estate not included in the inventory, this should be stated. (e) The date of the grant of representation. A copy of the grant including, where the deceased died testate, a copy of the will, should be exhibited to the affidavit. (f)

The foregoing information will show what assets there are in the estate, the distribution (if any) that will occur under the will or intestacy in favour of the plaintiff, and what distributions will be made to the other beneficiaries, unless orders are made in favour of the plaintiff.

(g) The affidavit should then deal with the family history, so far as is necessary by way of background, and deal particularly with the relationship between the plaintiff and the deceased. This aspect of the affidavit material may be supplemented by affidavits from friends and relatives.

(h) The financial position of the plaintiff, dealing with assets, liabilities, income and recurrent living expenses. It must be borne in mind that the jurisdiction to make orders depends upon the court finding that the deceased failed to make provision for the plaintiff that was adequate in the circumstances as these were known to the deceased at the date of death. There should be evidence to make clear whether the deceased, at that time, was acquainted with the plaintiff’s financial position as described in the affidavit material. (i)

If the plaintiff has knowledge of these matters, the affidavit material may deal with the financial position of the beneficiaries or next of kin who will participate in the distribution of the estate if no order is made in favour of the plaintiff.

(j)

It may be appropriate for the plaintiff to indicate in the affidavit what particular needs he or she has, and what sum of money or proportion of the estate the plaintiff claims ought to be provided for him or her by the court. [page 435]

(k) The plaintiff’s affidavit should deal with any of the other matters, insofar as they are relevant to the case, which are set out in s 91(4) of the Vic Act. It generally concludes with the submission that the will, or pattern of distribution on intestacy, fails to make adequate provision for the plaintiff’s proper maintenance and support, and a request that an order be made making provision (or further provision) for him or her out of the estate.

Compromises of applications for family provision 11.35 Mediation is now a compulsory step in family provision applications, and very many applications are compromised before the matter comes on for trial. Issues and documentation relevant to a compromise are as follows: 1.

The power conferred by s 19 of the Trustee Act 1958 (Vic) on a personal representative to compromise claims against an estate enables the defendant to compromise a plaintiff’s claim for family provision. However, in practice the personal representative will exercise the power to compromise a claim only with the consent of the beneficiaries whose interests are affected by the settlement, and that consent will be recorded in terms of settlement entered into between the plaintiff and the defendant. An example of terms of settlement appears as item 5(g) in Appendix I.

2.

If the claim is settled by agreement between the parties, on the occasion of a court-directed mediation or at any other time, it will be necessary to obtain an order from the court that the proceeding is dismissed without an adjudication on the merits. The practice of the Associate Justices is that it will not be sufficient for the parties to file a notice of discontinuance endorsed with the consent of the defendant. If the parties’ solicitors confirm that the plaintiff is of full age and capacity, and that the beneficiaries whose interests are affected by the settlement are also of full age and capacity, an order may be made ‘on the papers’ dismissing the proceeding. However: if the plaintiff brings the proceeding through a litigation guardian or administrator (being a minor or otherwise under a disability); or

if the compromise affects the interest under the will of any beneficiary who is not of full age and capacity; then the court’s approval of the compromise must be obtained before an order will be made dismissing the proceeding. There will need to be affidavit evidence demonstrating that the settlement is reasonable and exhibiting a copy of advice from counsel recommending in favour of the settlement. [page 436]

Final orders for family provision 11.36 Item 7(g) in Appendix I is an example of final orders made by a court where a plaintiff has succeeded in obtaining an order for provision, or further provision, from a deceased estate.

Application for an extension of time 11.37 If more than six months have elapsed since the grant of probate or letters of administration, an originating motion should not be issued seeking principal relief. Instead, application is made by originating motion (in the short form, Form 5C, prescribed by r 45.05 in Ch I of the Rules) and accompanying summons and affidavit in support, seeking an order extending the time within which to issue the application for principal relief. The relief to be sought in such application appears in item 8(g) and the accompanying summons in item 9(g) in Appendix I. That relief goes on to provide that if an extension of time is granted then an order for (further) provision be then made. If such additional orders are not sought in the Form 5B then, if an extension of time

is granted, a new originating motion is required to be issued within the extended time allowed. This is issued in the usual form, Form 5B, seeking (further) provision for the plaintiff.

Western Australia 11.38 The WA Act lays down the venue, the time limits and the jurisdiction. The rest is to be found in the Rules of the Supreme Court (WA) 1971 O 75 and practice directions. Only the Supreme Court of Western Australia exercises this jurisdiction, which is commenced by originating summons and heard, generally, on affidavit evidence, either with or without an order that deponents be cross-examined on their evidence.

Statutory requirements 11.39 The statute and its predecessor, the Testator’s Family Maintenance Act 1939 (WA), laid down minimal requirements. Only recently were those minimal requirements much supplemented by Rules of Court and by Practice Directions. The statute lays down the following procedural and jurisdictional directions: 1.

By s 4(1) the court is the Supreme Court of Western Australia.

2.

By s 4(2) the court is required only to be ‘reasonably satisfied’ as to the existence of any fact.

3.

By s 6(4) the court may order, in payment of any order, payment by a lump sum, periodical payment ‘or other payment’.

4.

By s 7(2)(a), the time limit for any application is ‘6 months from the date on which the Administrator becomes entitled to administer the estate of the deceased in Western Australia’.

[page 437] 5.

By s 7(2)(b), the court, if satisfied that the justice of the case requires, may grant an applicant leave to file out of time, and (by subs (3)), such a motion may be made at any time, including any time after expiry of the time limit.

6.

By s 8, the court is empowered to resort to the Trustees Act 1962 (WA) in order to make any order after distribution of the estate.

7.

Section 12 lays down the following strictly procedural requirements: (a) notice of any application shall be served on the administrator; (b) notice need not be served on any other person unless the court so directs. This is the foundation of the requirement that a summons for directions be taken out after the time limited for appearance; (c) the court may ‘treat any application as being made on behalf of all persons who might apply, and in respect of limitation, the application may be treated as an application on behalf of all entitled persons’.

8.

By s 13, a class fund may be set up out of the estate, and held on trust.

9.

By s 14, every order must set out the part of the estate from which the provision made shall come and, subject to any order, the other interests shall abate accordingly. Further, a certified copy of any such order shall be made upon the probate or letters of administration, and there is a general power to give consequential directions. Certain additional powers are given also in s 17.

10. Section 15 makes provision for the rescission or suspension of any order upon proven hardship. 11. Section 16 makes provision for increased orders. 12. Section 21 provides a general rule-making power.

Mode of application 11.40 By O 75 r 2, an application, other than an application in pending proceedings, shall be commenced by originating summons. An example of the usual form of originating summons appears as item 1(h) in Appendix I. The procedure is as follows: 1.

File an affidavit in support of application with the originating summons.

2.

File an additional copy of the originating summons and a copy of the probated will: O 75 r 3.

3.

Serve originating summons on administrator as defendant: s 12(1) WA Act and O 75 r 2(2).

4.

File and serve memorandum of appearance: O 12(1).

5.

Issue summons for directions within seven days of the time limited for an appearance: O 75 r 4. [page 438]

Summons for directions 11.41 By O 75 r 4, within seven days after the time limited for appearance (which is set out in the general rules relating to

originating summonses in Orders 58 and 59 of the Rules of the Supreme Court), the plaintiff must apply on summons for directions and, where the plaintiff fails to make such an application for directions, the defendant may apply. An example of the usual summons for directions appears as item 2(h) in Appendix I. The subject matter of the summons for directions is effectively covered by O 75 r 5 which reads, in its material parts: … the Court may — (a) inquire as to — (i)

the nature of the relief that the plaintiff seeks; and

(ii) the persons or classes of persons who will be affected by that relief if granted; (b) for the purpose of the inquiry, direct the plaintiff and defendant to supply such information as the Court may require; (c) give directions as to the persons to be added as defendants as being interested in the relief claimed, or to represent classes of persons so interested; (d) make an order under rule 7; (e) direct that notice of the application be served on any person; (f)

give such other directions as the Court thinks fit as to the evidence to be filed, the persons to be served and the hearing of the application.

Form of directions order 11.42 Common Forms 10 and 11 in the Practice Directions of the Supreme Court of Western Australia are set out below. These should be consulted whenever a summons for directions is framed.

Common Form 10 11.43 1.

Order for Directions: Family Provision Act 1972 (WA)

The existing defendant be designated first defendant [and

described as executor of the will of the deceased]. 2.

[ ] be joined as second defendant.

3.

Within [ ] days of the date hereof the plaintiff do serve on the second defendant copies of the originating summons, the affidavits in support and this order.

4.

Any affidavit by or on behalf of the second defendant in answer to the plaintiff’s affidavit be filed and served within [ ] days from the time limited by the rules for entry of an appearance by the second defendant. [page 439]

5.

The costs of this application be costs in the cause.

6.

The application do otherwise stand adjourned sine die with liberty to apply.

Common Form 11 11.44 Order for Directions: Family Provision Act 1972 (WA) — Representative Defendant 1.

The existing defendant be designated first defendant [and described as executor of the will of the deceased].

2.

[ ] be joined as second defendant in his own right and as representing [ ] and [ ].

3.

Within [ ] days of the date hereof the plaintiff do serve on the second defendant copies of the originating summons, the affidavits in support and this order.

4.

Within [ ] days of the date hereof, the plaintiff do serve the originating summons, the affidavits in support and this order

on [ ] and [ ] who shall be at liberty to appear in these proceedings but at their own risk as to costs, and that they be bound by any order made in the proceedings. 5.

Any affidavit by or on behalf of the second defendant in answer to the plaintiff’s affidavit be filed and served within [ ] days from the time limited by the rules for entry of an appearance by the second defendant.

6.

The costs of this application be costs in the cause.

7.

The application do otherwise stand adjourned sine die with liberty to apply.

Further steps: 1.

Serve the parties directed to be served pursuant to the summons for directions.

2.

The case management registrar will call status conferences and call-overs to monitor the progress of the case. Most of the following steps will be found in the orders made by the Case Management Registrar: O 61A.

3.

File any answering affidavits.

4.

File any affidavits in reply.

5.

A court-directed mediation will be scheduled by the court under the supervision of a registrar (mediation can be requested at any stage of the proceedings).

6.

If mediation is unsuccessful, then must have case ready for trial.

7.

File and serve any further updating affidavits.

8.

List matter for trial.

9.

Give notice or requirement to be present at hearing for crossexamination on deponents of affidavits.

[page 440] 10. File an outline of submissions and a list of authorities in accordance with the orders of the case management registrar. 11. Trial before master/judge. 12. Extract order — Common Form 37. 13. If the administrator is successful, file the grant of probate at the Probate Office with a copy of the order and two additional photocopies of the order: O 75 r 8(1). 14. After certification of the grant (WA Act s 14(4)) the grant is returned to the administrator: O 75 r 8(2).

Additional parties 11.45 By O 75 r 6, the court may direct that any person be made a party, or that notice of the application be served on (or proceedings be given to) any person, at any stage of the proceedings.

Representative defendant 11.46 By O 75 r 7, the court may order, where several defendants have the same or a similar interest, that such defendant be authorised to defend the proceedings on behalf of all persons with such an interest.

Minor procedural rules 11.47

Order 75 r 8 directs administrators to lodge copies of

orders made in favour of plaintiffs in the registry. Order 75 r 9 states that an appearance is not required to an originating summons in which the only relief sought is extension of time for making an application under the statute. _________________ 1.

Hillman v Box [2010] 5 ACTLR 122; [2010] ACTSC 153.

2.

[1997] ACTSC 30 (2 May 1997).

3.

[2000] ACTSC 9 (11 February 2000).

4.

Supreme Court Rules 1970 (NSW) Sch J Succession Act 2006 cl 1(b).

5.

Supreme Court Rules 1970 (NSW) Sch J cl 2.

6.

Supreme Court Rules 1970 (NSW) Sch J cl 3(1).

7.

Uniform Civil Procedure Rules 2005 (NSW) Sch 8.

8.

Uniform Civil Procedure Rules 2005 (NSW) Pt 45 r 11.

9.

Supreme Court Rules 1970 Sch J.

10.

Uniform Civil Procedure Rules 2005 (NSW) Pt 7 r 11.

11.

Supreme Court Rules 1970 (NSW) Sch J cl 9(1).

12.

[2009] NSWSC 1199.

13.

Supreme Court Rules 1970 (NSW) Sch J cl 5.

14.

Supreme Court Rules 1970 (NSW) Sch J cl 9(2).

15.

Uniform Civil Procedure Rules 2005 (NSW) r 10.12.

16.

Uniform Civil Procedure Rules 2005 (NSW) Pt 77 r 65(1).

17.

Uniform Civil Procedure Rules 2005 (NSW) Pt 77 r 65(2).

18.

See NT Act s 7(1) and definition of ‘the court’ in s 4(1).

19.

Supreme Court Rules (NT) r 4.05(b).

20.

NT Act s 10.

21.

Combined effect of rr 4.05(b) and 45.02(1) of the Supreme Court Rules (NT).

22.

Supreme Court Rules (NT) r 45.03(3).

23.

Compare Supreme Court Rules (NT) r 77.03(1).

24.

Compare Supreme Court Rules (NT) r 29.01.

25.

See Supreme Court Rules (NT) r 30.02.

26.

See Supreme Court Rules (NT) r 4.07.

27.

See, in relation to discovery, Supreme Court Rules (NT) r 29.01, which refers to a

proceeding commenced by writ ‘and to a proceeding in respect of which an order has been made under R 4.07’. 28.

Section 68(1)(b)(x) and (2) of the District Court Act 1967 (Qld).

29.

The procedure for which is discussed below.

30.

Qld Practice Direction No 8 of 2001, para 3.

31.

Pursuant to the Qld Act s 41(8).

32.

For discussion on the approach of the courts to such application, see 5.9 and 5.10.

33.

The affidavit should establish, inter alia, that the application has some prospects of success: see Re Horridge (SC(Qld), Weld M, OS No 112/83, 3 May 1983, unreported).

34.

Qld Practice Direction No 8 of 2001, para 6.

35.

Qld Practice Direction No 8 of 2001, para 8(b).

36.

Qld Practice Direction No 8 of 2001, para 9(a) (quoted verbatim save for the paragraph numbering).

37.

Qld Practice Direction No 8 of 2001, para 9(b).

38.

Qld Practice Direction No 8 of 2001, para 10.

39.

Qld Practice Direction No 8 of 2001, para 9(c).

40.

Qld Practice Direction No 8 of 2001, para 9(d).

41.

Re Greenhalgh [1982] Qd R 99 at 103.

42.

Ibid.

43.

See Carter v Executor Trustee & Agency Co of South Australia (1974) 62 LSJS 159, where Lunn DM held that an order for disclosure should not be made until the points at issue between the parties were properly defined.

44.

Rules of the Supreme Court of Victoria Ch II r 16.04.

45.

Vic Act s 99.

46.

Rules of the Supreme Court of Victoria r 16.05.

47.

Rules of the Supreme Court of Victoria r 16.06.

48.

Rules of the Supreme Court of Victoria r 16.07.

49.

See Re Paulin [1950] VLR 462.

[page 441]

Appendix I Forms and Precedents Australian Capital Territory Note: A footer must be placed at the bottom of the first page of each ACT Supreme Court document in the following format: Filed on behalf of the [plaintiff/defendant] by: XYZ Solicitors 1 ABC Street CANBERRA ACT 2600

Telephone: Fax:

Item 1(a) Originating application and statement of claim Form 2.7 ORIGINATING APPLICATION Court Procedures Rules 2006

(see r 60 (Originating application — content etc)) In the *[Supreme/Magistrates] Court of the Australian Capital Territory No *[SC/MC] of (year) (Court to complete) *(name and provision number of law under which application is made)

(name) Plaintiff

(name) *Defendant [page 442] *To: (name of defendant) of (address) *And to: (name and address of anyone else the court directs to be served) Take notice that the Court will hear an application by (party) on (date) at (time) (or as soon after that as this application can be heard) to make the following orders: 1

(set out briefly orders or other relief sought for each cause of action with all necessary or appropriate particulars and name each party affected by the relief);

2

any other orders that the Court considers appropriate.

Filed for the plaintiff by: (the plaintiffs address for service and telephone number (if any) or, if the plaintiff is represented by a solicitor and the solicitor is the agent of another solicitor, the name and place of business of the other solicitor) *Grounds of application *[The orders are sought on the following grounds: (set out briefly, but specifically, grounds relied on)] Affidavits (complete this section unless the Court has ordered that the application need not be supported by an affidavit) This application is supported by the following affidavits: 1.

Affidavit of (name) *[sworn/affirmed] on (date).

2.

Affidavit of (name) to be *[sworn/affirmed] on (date).

(If you intend on the hearing to rely on any affidavits, they must be filed and a stamped copy served at the defendants address for service before the hearing date.) Plaintiff (if the plaintiff is an individual) Full name: *[Home/Business] address:

(if the plaintiff is a corporation) Name: (if the corporation is a company or a registered body within the meaning of the Corporations Act 2001 (Cwlth)) *[Australian Number]:

Company

Number/Australian

Registered

Body

[page 443] Type of body: Address of *[registered office/public officer]: *Representative capacity in which plaintiff sues: *(if the plaintiff is represented by a solicitor) Solicitor’s full name: (if the solicitor practises in a firm of solicitors) *Solicitor’s firm: Solicitor’s full business address: Solicitor’s telephone no: *Name, address and telephone no of solicitor’s agent: Address for service of documents (set out plaintiff’s address for service) (if represented by a solicitor the following information may be given)

*Document exchange box no: (if postal address different from address for service) *Postal address: *Fax: *Email address: *Defendant *Representative capacity in which defendant is sued: Date: (signature of plaintiff or plaintiffs solicitor) (name of plaintiff or plaintiffs solicitor) *omit if, or whichever is, inapplicable Notice to defendant Before taking any further steps in this proceeding, you must file a notice of intention to respond in the Court. If you do not attend the Court at the time this originating application is listed for hearing, either in person or by a lawyer — this application may be heard in your absence; or default judgment may be entered, or an order made, against you.

[page 444]

Item 2(a)

Notice of intention to respond Form 2.8 NOTICE OF INTENTION TO RESPOND Court Procedures Rules 2006 (see r 100, r 101, r 152) In the Supreme Court of the Australian Capital Territory No ...................... of ...................... IN THE MATTER OF: THE WILL OF [Name], late of [Address] in the Australian Capital Territory, [Occupation], deceased. AND IN THE MATTER OF: THE FAMILY PROVISION ACT 1969 as amended. [NAME] Plaintiff/s [NAME] Defendant/s As executor/rix of the estate of the late [Name] The defendant [NAME] intends to respond to this claim. Particulars of the defendant, the defendant’s solicitor and the defendant’s address for service are as set out below. *Corrected particulars of the defendant (note: this need

only be included if the particulars set out in the originating claim are incorrect) The defendant’s correct particulars are as follows: Full name: Home/Business address: Representative capacity in which defendant is sued:

As executor/rix of the estate of the late [Name] [page 445]

Particulars of defendant’s solicitor Solicitor’s full name: Solicitor’s firm: Solicitor’s full business address: Solicitor’s telephone no: *Name, address and telephone no of solicitor’s agent Defendant’s address for service of documents Defendant details: Document exchange box no: Postal address: Fax: Email address:

DATED: this ...................... day of ...................... ............................................. [NAME] Solicitor for the defendant

Item 3(a) Notice of directions hearing NOTICE OF DIRECTIONS HEARING In the Supreme Court of the Australian Capital Territory

No. S.C. of

THE WILL OF [Name], late of [Address] in the Australian Capital Territory, [Occupation], deceased. THE FAMILY PROVISION ACT 1969 as amended.

IN THE MATTER OF:

AND IN THE MATTER OF:

[page 446] BETWEEN:

[Name] Plaintiff AND: [Name] Defendant

As executor/rix of the estate of the late [Name] TAKE NOTICE THAT pursuant to Rule 1303 of the Court Procedures Rules 2006, a directions hearing in this matter is listed for the ...................... of ...................... at ...................... am. DATED .................................... Registrar TO: Solicitors for the plaintiff AND: Solicitors for the defendant Note:

there is no approved court form for Short Minutes of Orders. It is recommended that the following form be used. SHORT MINUTES OF ORDERS

1.

The plaintiff file and serve any further affidavits, to be relied on, on or before [Time and Date]

2.

The defendant file and serve any further affidavits, to be relied on, on or before [Time and Date]

3.

The plaintiff file and serve any further affidavits, to be relied on in reply, on or before [Time and Date]

Item 4(a) Affidavit of applicant Form 6.11 AFFIDAVIT — GENERAL Court Procedures Rules 2006 (see r 6711) [page 447] In the Supreme Court of the Australian Capital Territory No ...................... of ...................... IN THE MATTER OF: THE WILL OF [Name], late of [Address] in the Australian Capital Territory, [Occupation], deceased. AND IN THE MATTER OF: THE FAMILY PROVISION ACT 1969 as amended. [NAME] Plaintiff/s [NAME] Defendant/s As executor/rix of the estate of the late [Name]

On ...................... day of ...................... I [full name] of [home or business address or place of employment] say on oath/solemnly affirm: 1.

I am the plaintiff herein.

2.

I am the widow/widower, etc of the abovementioned (‘the deceased’) having been married to him/her at ............................................ Annexed and marked with the letter ‘A’ is the original (or copy) certificate of the marriage. (If a spinster at the date of marriage, insert: I had not been married prior to the marriage. If the plaintiff or deceased had been previously married or is a divorcee state when previous husband died or divorce occurred and exhibit relevant death certificate or decree absolute. Similarly with a widower’s application.)

3.

The deceased died on the ...................... day of ...................... 2000. Probate of his/her last will (or letters of administration of his/her estate) dated ...................... was/were granted to ...................... (the executor named herein) (or to ......................) on the ...................... day of ...................... 2000. Annexed and marked with the letter ‘B’ is the will (or a true copy of the will).

4.

The deceased was at the time of his/her death possessed of real and personal estate described in the affidavit sworn in connection with the application for probate of the will (or letters of administration of the said estate) and valued at the net amount of $ ...................... A true copy of the affidavit is annexed and marked with the letter ‘C’.

5.

I am … years of age having been born on the ...................... day of ...................... The following are the children of my marriage with the deceased (giving sexes and dates of birth and whether living or dead).

6.

The deceased was born at ...................... in the Australian Capital

Territory in the year ...................... and resided there until his/her [page 448] death and he/she was at the time of his/her death domiciled in the Australian Capital Territory. 7.

Under the will (or, by the operation of the provisions of the Administration and Probate Act) (or by his/her will and the operation of the said provisions) I received the following provision (set out whatever real and personal property was left to the plaintiff, giving its probate valuation unless there is some reason for thinking that its true value is other than the probate valuation. In that case an affidavit by an independent valuer should be sworn and filed).

8.

At the date of the deceased’s death my financial position was as follows: [Insert Capital and Income].

9.

At the present time my financial position is as follows: [Insert Capital and Income].

10. (That station in life of the plaintiff and the mode of living to which he/she has been accustomed.) 11. (The relations which existed between the deceased in his/her lifetime and the plaintiff.) 12. (State the plaintiff’s health at present, and at date of death of the deceased. Statements as to ill health should be supported by a separate affidavit by a medical practitioner.) 13. (Set out any moral claim to provision, such as, that the plaintiff helped to build up the estate left by the deceased. Also set out any illnesses incurred, eg by working a farm property later left in his/her will by the deceased.)

14. Answer allegations (if any) made against the plaintiff in the will. 15. (The financial position, if known, of the beneficiaries sharing in the estate.) 16. I respectfully request that adequate provision for my proper maintenance and support be ordered to be made out of the estate of the abovenamed deceased. SIGNED AND SWORN/AFFIRMED ] by the deponent at Canberra ] in the Australian Capital Territory ] before me: ]

......................

................................................................. (A Justice of the Peace/Solicitor) [Insert address of witness] [page 449]

New South Wales Item 1(b) Summons Form 3 (version 2) Rule 6.2

COURT DETAILS Court **Division **List Registry Case number TITLE OF PROCEEDINGS [First] plaintiff **Number of plaintiffs Estate of (name), Dec’d; Date of Death: XX.YY.ZZZZ. [First] defendant **Number of defendants FILING DETAILS / ADDRESS FOR SERVICE Filed for Address for service **DX address ** Telephone ** Fax ** Email ** Court user number ** Reference number

Plaintiff[s]

HEARING DETAILS Listed at [place of hearing] on [date] at [time].

RELIEF CLAIMED The plaintiff[s] claim[s] 1.

An order that provision be made for the plaintiff’s maintenance, education and advancement in life pursuant to s 59 of the Succession Act 2006, out of the estate and/or notional estate of [insert name of deceased] late of [insert address] in the State of New South Wales, deceased. [page 450]

2.

[If appropriate] An order pursuant to s 80 of the said Act [or s 79 or s 81 or s 82 whichever is applicable] designating as notional estate [insert details].

3.

[If appropriate] An order that, by way of interim relief, there be paid for the provision of the proper maintenance, education and advancement in life of the plaintiff out of the estate and/or notional estate of [insert name of deceased] the amount of $[insert amount] per week.

4.

An order that the costs of the plaintiff be calculated on the ordinary basis and paid out of the estate.

5.

An order that the costs of the defendant be calculated on the indemnity basis and paid out of the estate.

6.

Such further or other order as to this Honourable Court seems fit.

**APPEAL GROUNDS The grounds of appeal are as follows SIGNATURE

Signature Name Capacity

**Solicitor for plaintiff[s] **Solicitor belonging to the same firm or organisation as [plaintiff’s[s’] solicitor **Solicitor acting as agent for [plaintiff’s[s’] solicitor **Solicitor belonging to the same firm or organisation as [plaintiff’s[s’] solicitor’s agent **Authorised person for plaintiff[s] **Plaintiff[s]

Date **CERTIFICATE — SECTION PROFESSION ACT 2004

347

OF

THE

LEGAL

I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success. Signature Name Capacity Date

[Barrister or solicitor]

[page 451]

PARTY DETAILS PLAINTIFF[S] [First] plaintiff Family name OR company name Given names OR ACN Address **Telephone

[To be included if plaintiff is unrepresented] **Fax [To be included if plaintiff is unrepresented] **Email [To be included if plaintiff is unrepresented] **[First] plaintiff’s Tutor **Name of tutor **Address **PLAINTIFF’S[S’] REPRESENTATIVE **Solicitor on the record Name **Practising certificate number Firm Address Telephone ** Fax ** Email Agrees to electronic service [yes / no]

**Solicitor on the record’s agent Name Practising certificate number Agent’s firm Agent’s address Agent’s telephone Agent’s fax Agent’s email **Plaintiff’s[s’] authorised officer Name of authorised officer Address Capacity to act for plaintiff Telephone Fax Email Agrees to electronic service [yes / no] [page 452] DEFENDANT[S] [First] defendant Family name OR company name Given names OR ACN Address

**HOW TO RESPOND You can respond by your solicitor or barrister, or an authorised person or you (if you do not have a solicitor or barrister) attending court at the time and place for hearing. You must enter an appearance before you can appear before the court. You can get further information about the forms that need to be filed to respond from: The Registry at the place of hearing A legal practitioner LawAccess NSW on 1300 www.lawaccess.nsw.gov.au.

888

529

or

at

NOTICE TO DEFENDANT If your solicitor, barrister, an authorised person or you do not attend, the court may give judgment or make orders against you. The court may also make orders for the payment of costs. REGISTRY ADDRESS Street address Postal address Telephone Item 2(b) Notice to administrator

[Title as in item 1(b)] TO: [insert name of defendant] TAKE NOTICE that I am the plaintiff in proceedings No. ............ of

2016 in the Supreme Court of New South Wales, Equity Division, for an order pursuant to the Succession Act 2006 that provision be made for me out of the estate and/or notional estate of the late [insert name of deceased] who died on [insert date]. In my opinion, the following persons are or may be eligible persons within the meaning of the Succession Act 2006: [Insert name and address of all eligible persons and the relationship to the deceased]. DATED: [insert date] [page 453]

Item 3(b) Plaintiff’s affidavit

[Title as in item 1(b)] **AFFIDAVIT DETAILS I # say on oath #affirm: 1. I am the plaintiff. 2. I believe that the contents of this affidavit are true. Deceased’s information 3. I have referred to [name of the deceased] as ‘the deceased’ in this affidavit. 4. The deceased:

(a) Was born on [date] and died on [date] aged [number] years (b) #Left a will dated [date] /Did not leave a will. 5. #Probate/#letters of administration of the deceased’s estate was granted to [name/s] on [date]. #The Court has not granted probate or letters administration in relation to the deceased’s estate.

of

Eligibility to make a Claim 6 I am (insert as appropriate): (a) a person who was the wife or husband of the deceased person at the time of the deceased person’s death, (b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death, (c) a child of the deceased person, (d) a former wife or husband of the deceased person, (e) a person: (i)

who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) 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, (f)

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

[page 454] Any family or other relationship between the plaintiff and the deceased person, including the nature and duration of the relationship. 7 Insert details The nature and extent of any obligations or responsibilities owed by the deceased person to the plaintiff. 8 Insert details The nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered. 8 Annexed hereto and marked ‘###’ is a true copy of the Probate, the deceased’s will and the inventory of property attached to the Probate document. or 9 The deceased died intestate. Annexed hereto and marked ‘###’ is a true copy of the letters of administration and the inventory of property. The persons entitled on intestacy are: Insert details The financial resources (including earning capacity) and financial needs, both present and future, of the plaintiff. 10. Annexed hereto and marked ‘###’ is a summary of my assets and liabilities (including superannuation). 11. Annexed hereto and marked ‘###’ is a summary of assets that I hold with another person.

12. My current gross monthly income is $###. My current net monthly income is $###. 13. Annexed hereto and marked ‘###’ is a summary of my (or my family’s) monthly expenditure. 14. I shall produce documents sought by the administrator. 15. I purchased or sold the following real estate in the last 3 years: Purchase/sale Purchase or date sale

Property details

Purchase price/sale price

[page 455] 16. I purchased or sold the following shares in public companies in the last 3 years: Purchase/sale Purchase or date sale

Share details Purchase price/sale price

17. I made the following gifts of amounts $1,000 or more in the last 3 years: Date of gift

Amount of gift

Person or organisation to whom gift was given

18. I sold the following property for $1,000 or more in the last 3 years: Sale date

Sale price

Value of property

Description

19. I have the following interests in the following companies or trusts: Insert details 20. Annexed hereto and marked ‘###’ is a diagram that shows my ownership and control of the companies and trusts referred to in the previous paragraph and their underlying assets. 21. Insert details of needs both present and likely future needs of the plaintiff If the plaintiff is cohabiting with another person — the financial circumstances of the other person. 22. Insert details The age of the plaintiff when the application is being considered. 23. I believe I was born on (insert date of birth) and am currently aged ### years. Any physical, intellectual or mental disability of the plaintiff that is in existence when the application is being considered or that may reasonably be anticipated. 24. Insert details

[page 456] 25. Annexed hereto and marked ‘###’ is a true copy of a report dated ### from my general medical practitioner which discloses my current state of health. Any contribution (whether financial or otherwise) by the plaintiff to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the plaintiff. 26. Insert details Any provision made for the plaintiff by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate. 27 Insert details Any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. 28 Insert details Whether the plaintiff was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and the extent to, and the basis on, which the deceased person did so. 29 Insert details Whether any other person is liable to support the

plaintiff. 30 Insert details The character and conduct of the plaintiff before and after the date of the death of the deceased person. 31 Insert details The conduct of any other person before and after the date of the death of the deceased person. 32 Insert details Any relevant Aboriginal customary law.

or

Torres

Strait

Islander

33 Insert details if appropriate #SWORN #AFFIRMED at Signature of deponent

[page 457] Signature of witness Name of witness Address of witness Capacity of witness

[#Justice of the peace #Solicitor #Barrister #Commissioner for affidavits #Notary public]

Note: (a) Please ensure that the affidavit is sworn or affirmed. The deponent and witness must sign each page of the affidavit. (b) Each page of the affidavit, including annexures, should be

consecutively paginated on the top right hand corner of each page. Item 4(b) Administrator’s affidavit

[Title as in item 1(b)] **AFFIDAVIT DETAILS I # say on oath #affirm: 1. I am the administrator of #. A copy of the deceased’s Will and the probate or letters of administration, should be annexed if granted (if a copy is not already annexed to the plaintiff’s affidavit). 2. [Insert details] A description of the nature and value of the assets and liabilities of the deceased at the date of death (A copy of the inventory of property attached to the probate or letters of administration will suffice so far as the property of the deceased at the date of death unless other assets have been discovered). 3. [Insert details] What is, or is likely to be, the nature, and an estimate of the value, of: (i) The assets and liabilities of the deceased at the date of swearing the affidavit; (ii) Any property of the deceased that has been distributed at any time after the death of the

deceased and the date of the distribution of that property; (iii)The gross distributable estate (omitting the costs of the proceedings). [page 458] 4. [Insert details] A description of the nature, and an estimate of the value of any property which, in the administrator’s opinion, is, or may be, the subject of any prescribed transaction or relevant property transaction. 5. [Insert details] The name and address of every person who, in the administrator’s opinion, is holding property as trustee, or otherwise which is, or may be, the subject of any prescribed transaction or relevant property transaction. 6. [Insert details] Any testamentary and other expenses, or other liabilities of the estate that have been paid out of the estate of the deceased, including the amount, if any, paid for, or on account of, the administrator’s costs of the proceedings. 7. [Insert details] Whether any commission is to be sought by the administrator, and if so, an estimate of the amount proposed to be sought. 8. [Insert details]

The names and address of every person who, in the administrator’s opinion, is, or who may be: (i) An eligible person; (ii) An eligible person under a legal incapacity; (iii)A person beneficially entitled to the distributable estate; (iv) A person holding property as trustee or otherwise. Item 5(b) Notice of claim

[Title as in item 1(b)] The plaintiff has applied to the Court under the Succession Act 2006 for a family provision order in respect of the estate of (name) deceased who died on (date). If you are entitled to, and wish to apply for, an order for provision for you out of that estate, you must apply within a period prescribed by the Succession Act 2006 or allowed by the Court. If you do not, before the Court deals with the plaintiff’s application, apply for an order for provision for you out of that estate, the Court may deal with the plaintiff’s application without regard to any possible application by you. [page 459] Dated: (signature)

Solicitor for the administrator (Address for service) Item 6(b) Summons seeking release

[Title as in item 1(b)] The Plaintiff claims: 1.

An order that the Court approve the release by the plaintiff contained in the Deed dated [insert date] made between the plaintiff and the defendant, pursuant to s 95 of the Succession Act 2006.

2.

Such further or other order as to this Honourable Court seems fit.

Northern Territory Item 1(c) Originating motion between parties Form 5B Rule 5.02(2) ORIGINATING MOTION BETWEEN PARTIES IN THE SUPREME COURT OF NORTHERN TERRITORY OF AUSTRALIA AT [Darwin or

No.

of

Alice Springs as the case may be] BETWEEN A.B. Plaintiff AND C.D. AS EXECUTOR OF THE ESTATE OF ...................... Defendant [page 460] TO THE DEFENDANT This proceeding by originating motion has been brought against you by the plaintiff for the relief or remedy set out below. IF YOU INTEND TO DEFEND the proceeding, YOU MUST GIVE NOTICE of your intention by filing an appearance within the proper time for appearance stated below. YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed by: (a) filing a ‘Notice of Appearance’ in the Registry of the Supreme Court in the Supreme Court Building, State Square, Darwin, or, where the originating motion has been filed in the Alice Springs Registry, in the Alice Springs Registry of the Supreme Court, Law Courts Building, Parsons Street, Alice Springs; and

(b)

on the day you file the Notice or on the next working day, serving, at the plaintiff’s address for service which is set out at the end of this originating motion, a copy, sealed by the Court.

IF YOU DO NOT file an appearance within the proper time, the plaintiff MAY OBTAIN JUDGMENT AGAINST YOU without giving you any further notice. IF YOU FILE an appearance within the proper time, the plaintiff cannot obtain judgment against you except by application to the Court after notice to you by summons. THE PROPER TIME TO FILE AN APPEARANCE is as follows: (a) Within 7 days after service: (i)

where you have been served with the originating motion filed in the Darwin Registry and that service was within the Northern Territory and within 200 kilometres of Darwin; or

(ii) where you have been served with the originating motion filed in the Alice Springs Registry and that service was within the Northern Territory and within 200 kilometres of Alice Springs; (b) Within 14 days after service, where you are served within the Northern Territory with the originating motion filed in either Darwin or Alice Springs Registry but you are served at a place not within 200 kilometres of the Registry in which it was filed; (c) Within 21 days after service where you are served with the originating motion out of the Northern Territory but within the Commonwealth;

[page 461] (d) Within 28 days after service, where you are served with the originating motion in New Zealand or in Papua New Guinea; (e) Within 42 days after service, where you are served with the originating motion in any other place. FILED REGISTRAR THIS ORIGINATING MOTION is to be served within one year from the date it is filed or within such further period as the Court orders.

Part 2 The plaintiff seeks the following orders: 1

That adequate provision be made for the proper maintenance and support of the plaintiff out of the estate of the late [NAME], deceased;

2

That the costs of and incidental to the application be taxed on an indemnity basis and paid out of the estate of the abovenamed deceased;

3

Such further or other orders as this Honourable Court deems fit.

This claim is made pursuant to the Family Provision Act.

Part 3* 1.

Place of trial — DARWIN/ALICE SPRINGS

2.

This originating motion was filed: (a) by the plaintiff in person; (b) for the plaintiff by [name or firm of solicitor], solicitor, of [business address of solicitor]; (c) for the plaintiff by [name or firm of solicitor], solicitor, of [business address of solicitor] as agent for [name or firm of principal solicitor], solicitor, of [business address of principal].

3.

The address of the plaintiff is: [If the plaintiff sues by a solicitor, the address for service is the business address or email address of the solicitor or, if the solicitor acts by an agent, the business address or email address of the agent. If the plaintiff sues without a solicitor, and the address for service is not an email address, the address for service is stated in 3, but, where that address is not within 30 km of the Registry in which the originating motion is filed the plaintiff must state an address for service which is within 30 km of that Registry.] [page 462]

4.

The address for service of the plaintiff is ......................

5.

The address of the defendant is:

* Complete or strike out as appropriate.

Item 2(c) Summons on originating motion

[Reference and title as in item 1(c)] Form 45A Rule 45.04(2) SUMMONS ON ORIGINATING MOTION To:

[identify each party or other person to whom summons is addressed and state address of each person not a party.] You are summoned to attend before the Court on the hearing of an application by the plaintiff for judgment or an order in respect of the relief or remedy sought in the originating motion as follows: 1

That adequate provision be made for the proper maintenance and support of the plaintiff out of the estate of the late [NAME], deceased;

2

That the costs of and incidental to the application be taxed on an indemnity basis and paid out of the estate of the abovenamed deceased;

3

Such further or other orders as this Honourable Court deems fit.

The application will be heard before a Judge (or the Master) in the Court, Supreme Court Building, State Square (or Parsons Street, Alice Springs), on at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. (Where returnable before the Master) The Master may, as appropriate:

(a) where he has authority to give the judgment or make the order sought by the plaintiff, hear and determine the application; (b) by consent of the defendant, give the judgment or make the order; (c) refer the application to a Judge for hearing and determination; (d) place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise. FILED

20 [page 463]

Item 3(c) General form of order

[Reference and title as in item 1(c)] Form 60C Rule 60.08 GENERAL FORM OF ORDER ORDER JUDGE [or MASTER]: DATE MADE:

ORIGINATING PROCESS: By originating motion filed on HOW OBTAINED:

By summons on originating motion filed by the plaintiff on

APPEARANCE:

[set out appearance or nonappearance of any person entitled to attend and, if attending, whether by counsel or solicitor]

OTHER MATTERS:

Nil

THE COURT ORDERS THAT: 1.

The plaintiff file and serve any affidavits upon which she intends to rely within fourteen (14) days;

2.

The defendant file and serve any answering affidavits within fourteen (14) days thereafter;

3.

The defendant provide to the plaintiff a list of discoverable documents within twenty-one (21) days thereafter;

4.

Inspection of documents take place within seven (7) days thereafter;

5.

The matter be referred to the Registrar for allocation of a hearing date;

6.

The parties have liberty to apply on forty-eight (48) hours’ written notice to the other; and

7.

The costs of and incidental to the application be costs in the proceeding.

DATE

AUTHENTICATED: __________________________ REGISTRAR [page 464]

Item 4(c) Affidavit of plaintiff

[Reference and title as in item 1(c)] Rule 43.01 AFFIDAVIT DEPONENT: DATE PROMISED

The

day of

2016

I, [NAME] of [ADDRESS], [OCCUPATION], PROMISE that: 1.

I am the plaintiff herein.

2.

I am the [RELATION] of the late [NAME], deceased, who died on ......................

3.

Probate of the Will of the said [NAME] bearing date the ...................... day of ...................... was granted by this Honourable Court to [NAME] of [ADDRESS], the [RELATION] of the said [NAME] as the sole executor thereof.

4.

I am informed by the defendant and verily believe that the net value of ...................... estate exceeds [AMOUNT].

5.

I claim that no adequate provision has been made for me under the Will of the said deceased and I seek an order from

this Honourable Court that adequate provision be made for me out of the estate of the abovenamed deceased.

PROMISED THE DEPONENT:

PAGE 1 DAY OF WITNESS:

20 .....

6.

During my [RELATION’S] life she regularly made gifts to me of ...................... for ...................... I estimate that I received approximately [AMOUNT] per month from my [RELATION] during the last year of [RELATION’S] life.

7.

Without the contributions made by my [RELATION] I would be unable to afford living expenses for ...................... .

8.

Apart from myself there were children of the marriage, my [RELATION] and my [RELATION].

9.

To the best of my knowledge, information and belief there are no other persons who might apply to this Honourable Court under [page 465] the provisions of the Family Provision Act for provision out of the estate of the abovenamed deceased.

10. I know the facts deposed to herein of my knowledge except where otherwise appears. PROMISED by the abovenamed deponent

)

at this day of 2016 Before me:

) ) )

_____________________

______________________________

Queensland Item 1(d) Application

SUPREME COURT (or DISTRICT COURT, as appropriate) OF QUEENSLAND REGISTRY: Brisbane NUMBER: APPLICANT: [APPLICANT] (under Part IV, ss 40–44, Succession Act 1981) AND RESPONDENT: [RESPONDENT] (as executor of the will of [NAME] deceased) ORIGINATING APPLICATION To the respondent: TAKE NOTICE that the applicant is applying to the Court for the following orders — 1.

adequate provision be made for the proper maintenance and support of [APPLICANT] out of the estate of the deceased;

2.

[See commentary A immediately following.]

3.

the costs of and incidental to the application on an indemnity basis be assessed and paid out of the estate of the deceased; and

4.

for such further or other orders as to the Court may seem meet.

This application will be heard by the Court at Brisbane on a date to be fixed by agreement or failing agreement after notice of not less than fourteen (14) days from one party to the other parties. [page 466] Filed in the Brisbane registry on: (date) Registrar: If you wish to oppose this application or to argue that any different order should be made, you must appear before the Court in person or by your lawyer and you shall be heard. If you do not appear at the hearing the orders sought may be made without further notice to you. In addition you may before the day for hearing file a Notice of Address for Service in this Registry. The Notice should be in Form 8 to the Uniform Civil Procedure Rules. You must serve a copy of it at the applicant’s address for service shown in this application as soon as possible. On the hearing of the application the applicant intends to rely on the following affidavits: 1.

Affidavit of [APPLICANT] sworn (date);

If you intend on the hearing to rely on any affidavits they must be filed and served at the applicant’s address for service prior to the hearing date.

ORIGINATING APPLICATION

Solicitor’s name

Filed on behalf of the applicant(s)

Solicitor’s address

Form 5 R.26 This application is to be served on: If you object that these proceedings have not been commenced in the correct district of the Court, you must apply to the Court for dismissal of the proceedings. [The applicant is suing in a representative capacity namely [insert details — see rule 18]] The [first] respondent is sued in a representative capacity as executor [administrator (as the case may be)] of the will [estate (as the case may be)] of [NAME] deceased. PARTICULARS OF THE APPLICANT: Name: Residential or business address: Solicitor’s name: and firm name: Solicitor’s business address: Address for service: [page 467] DX (if any): Telephone:

Fax: Email address (if any): [If the applicant has no solicitor: applicant’s address for service: applicant’s telephone number or contact number: applicant’s fax number (if any): applicant’s email address (if any):] Signed: Description: Solicitor for the applicant Dated: This application is to be served on: [RESPONDENT] of Commentary: Add if appropriate: A

— this application be heard and determined notwithstanding that it is instituted outside the time limited for the bringing of applications; and/or — this application be heard and determined notwithstanding that it is instituted when no grant of representation has been made in the estate of the abovenamed deceased; and/or — [here describe the relevant part of the estate] should be exonerated from the incidence of the order for family provision.

B

— In cases in intestacy

(a) Reference in the heading to the respondent will appear as (personal representative of the estate of [NAME] deceased). — Endorsement of the address of the applicant and the name and address of his or her solicitor (if any) is required by R.17(1). C

— At the foot of the originating application and of every copy, a statement is required of the persons on whom it is intended to serve the application: R.26. [page 468]

Item 2(d) Directions order

[Court heading as appropriate] DIRECTIONS ORDER 1.

On or before the 1st day of May 2016 the applicant shall file and serve upon the respondent any further affidavits by or on behalf of the applicant.

2.

On or before the 15th day of May 2016 the respondent shall cause copies of the originating application, all affidavits by or on behalf of the applicant, and this order to be sent by a form of mail or delivery requiring a signed receipt from the recipient to: [insert list of persons to be served, providing full names and

addresses] together with a letter in compliance with paragraph 8(a) of Practice Direction No. 2 of 1997. 3.

On or before the 15th day of June 2016 any person served pursuant to paragraph 2 of this order who chooses to be separately represented shall file and serve a notice of address for service under Rule 29; if that person intends to apply for provision out of the estate, that is to be stated in the notice of address for service.

4.

On or before the 1st day of July 2016 any person who has given notice under paragraph 3 of this order shall cause his/her affidavit/s to be filed and served upon the applicant and the respondent, or their solicitors.

5.

On or before the 1st day of August 2016 any affidavits by or on behalf of the respondent shall be filed and served upon the applicant and upon any other person who has given notice under paragraph 3 of this order, or their solicitors.

6.

On or before the 1st day of September 2016 any further affidavits by or on behalf of the applicant, the respondent, or any person who has given notice under paragraph 3 of this order shall be filed and served upon all other parties, or their solicitors.

7.

(a) The parties shall undertake the following dispute resolution plan: (i)

the following steps have already been undertaken to bring about a consensual resolution: [Insert particulars of any steps already taken toward compromise. For example: 1.

Nil;

2.

Exchange of correspondence;

3.

Correspondence and telephone communications;

4.

Meetings between the parties and/or their legal representatives,

or such combination of the above as may be appropriate.] [page 469] [Insert particulars of dispute resolution plan. For example: (ii) confirmation of representation of all interested parties, including next friend and guardian ad litem arrangements for infants and others under a disability, as appropriate. (iii) obtain legal advice independently of each other on the likely outcome of the proceedings, bearing in mind the constraints suggested by paragraph 8(a) of Practice Direction No. 8 of 2001. (iv) the parties and their legal representatives (including parties who have given notice under paragraph 3 of this Order) shall meet together on or before the day of either at a venue to be agreed or by telephone conference and by that means conduct ‘without prejudice’ discussions to: –

exchange any relevant information not disclosed upon the affidavits filed by the parties;

–

define the issues in the proceedings; and

–

attempt to proceedings.]

negotiate

a

compromise

of

the

(b) In the event the matter is not resolved pursuant to the dispute resolution plan the parties shall undertake an

ADR process, namely: [Insert particulars of proposed ADR process. For example: (i)

participate in, and act reasonably and genuinely in a (mediation or case appraisal) pursuant to UCPR Chapter 9 Part 4 which shall take place on or before the 1st day of November 2016, to be conducted by a (mediator or case appraiser) agreed upon by the parties upon terms also agreed upon by them or, failing agreement as to the (mediator or case appraiser), and/or the terms of the (mediation or case appraisal), as ordered by the Court.

(ii) the (mediator or case appraiser) shall file a form (35 in the case of the mediator or a form 36 in the case of a case appraiser) at the conclusion of the (mediation or case appraisal).] 8.

Upon compliance with all the preceding requirements and the filing of a request for trial date signed by or on behalf of the applicant, the respondent and any person who has filed a notice under paragraph 3 of this order, the matter shall be placed on a Callover List.

9.

Any party shall be at liberty to apply on reasonable notice in writing to the other parties.

10. The costs of and incidental to the application and this order are reserved to the trial judge, or further order. [signed] [signed] Solicitors for the applicant Solicitors for the respondent Date:

Date: [page 470]

South Australia Item 1(e) Summons (for use with affidavit) Form 4 (Supreme Court only) Rule 34(3) SOUTH AUSTRALIA IN THE SUPREME COURT No ...................... of 20 ...................... BETWEEN: [PLAINTIFF] Plaintiff and [DEFENDANT] Defendant Summons issued on behalf of [PLAINTIFF] of [ADDRESS] in the State of South Australia TO THE DEFENDANT: (name) of (address) The plaintiff, (name) makes a claim against you or which may affect you. Details of the claim and relief sought are contained in the accompanying Statement of Claim/Affidavit (delete whichever is inapplicable). Action required

If you wish to defend the claim, you must: (a) file a Notice of Address for Service within 14 calendar days after service of this Summons on you; and (b) file a Defence/answering Affidavit (delete whichever is inapplicable) within 28 calendar days after service of the Statement of Claim/Affidavit relied on by the plaintiff (delete whichever is inapplicable) on you.

If a Notice of Address for Service and a Defence/answering Affidavit (delete whichever is inapplicable) is not filed within the time stated, orders may be made against you in your absence and without further notice. [page 471] The Notice of Address for Service and Defence/answering Affidavit (delete whichever is inapplicable) must be filed at a Registry of the Court. If you do not have a solicitor, you may attend personally at a Registry to do this. A list of the Registry addresses may be obtained through the website of the Courts Adminstration authority (www.courts.sa.gov.au) or by telephoning the registry of the Court (8204 0289). Endorsements Summons issued pursuant to s 7 of the Inheritance (Family Provision) Act 1972. This summons has the following endorsements: Not Applicable. Orders sought (delete this section if statement of claim filed)

On the grounds stated in the accompanying affidavit, the plaintiff seeks the following orders: 1.

That such provision as the Court may think fit be made out of the estate of [NAME].

2.

That the costs of this application be paid out of the estate of the said deceased.

3.

Such further or other orders as the Court deems fit.

Plaintiff’s address The plaintiff’s address for service is: Place: Email: The plaintiff’s address is (if the plaintiff is an individual — place of residence or business: if the plaintiff is a corporation — principal place of business). Date:

.................................................................. Signed by (name) Plaintiff/Plaintiff’s solicitor (delete whichever is inapplicable) [page 472]

Notes 1.

If the full name of a party is not known the summons may be endorsed as follows: “Any better full name of the (role of the party) is not known, and not reasonably ascertainable by, the plaintiff”.

2.

If the plaintiff intends to apply for an authorisation under rule 81 the summons is to bear the following endorsement under rule 81(2)P: “The plaintiff brings this action as representative of a group of which each member has a common interest being (set out question of law or fact in which there is a common interest) and intends to apply for the necessary authorisation under rule 81”.

3.

As to other endorsements which may be required on a summons see rule 38(3)(a). Item 2(e) Affidavit of the plaintiff

[Reference and title as in item 1(e)] AFFIDAVIT OF THE PLAINTIFF I, [PLAINTIFF] of [ADDRESS] in the State of South Australia, [OCCUPATION] SWEAR ON OATH/DO TRULY AND SOLEMNLY AFFIRM: 1.

I am the lawful [RELATION] of [NAME] late of [ADDRESS] in

the State of South Australia, [OCCUPATION] deceased (hereinafter called ‘the deceased’) who died at ................................ in the said State on the .......... day of ...................... 2.

Probate of the last will of the deceased bearing date the ...................... day of ...................... was granted to the defendant on the ...................... day of ...................... A true copy of the probate and will of the deceased is now produced to me and marked “A”.

3.

The deceased was a widower at the date of his death.

4.

The deceased was survived by the [PLAINTIFF] and [NAME] and [NAME] who are children of the deceased.

5.

The deceased dealt with the whole of the residue of his estate by clause 5 of his said will which provides as follows: ‘5. MY TRUSTEES shall hold the residue of my estate upon trust for such of my children [NAME], [NAME] as shall be living at my death and if more than one then in equal share absolutely’. [page 473]

6.

I am informed by the executor and I verily believe that at the date of his death the deceased owned the following assets and liabilities:

7.

I am informed by the executor and I verily believe that the net estate of the deceased at the date of his death was $

8.

I claim that adequate provision has not been made by the deceased for me under the will of the said deceased and I seek an order from this Honourable court that adequate provision be made for me out of the estate of the deceased and that the costs of and incidental to this application as between solicitor

and client be taxed and paid out of the estate of the said deceased. 9.

[Hereafter further facts and circumstances relevant to the application would be set out.]

Sworn/Affirmed by the abovenamed deponent at on ......................................................... (signature of deponent) Before me ......................................................... (signature of attesting witness)

Item 3(e) Statement of claim

[Reference and title as in item 1(e)] Form 18 Rules 91, 98 and 99 STATEMENT OF CLAIM Introduction (summarise the claim in less than 50 words): This is a claim by a son/daughter/widow etc pursuant to the Inheritance (Family Provision) Act The causes of action relied on are:

(list causes of action): Section 7 of the Inheritance (Family Provision) Act [page 474] Part 1: Background and uncontroversial matters (plead background and facts or matters expected to be uncontroversial) 1.

[NAME] late of [ADDRESS] in the State of South Australia, [OCCUPATION] deceased (hereinafter called ‘the deceased’) died at .......... in the said State on the ......... day of ......................

2.

Probate of the last will of the deceased bearing date the ....... day of ...................... was granted to the first defendant on the ...................... day of ...................... The said first defendant is sued in his capacity as the sole executor and one of the beneficiaries of the will of the deceased.

3.

The plaintiff is the [RELATION] of the deceased.

4.

The defendants are the [RELATIONS] of the deceased.

5.

The deceased dealt with the whole of the residue of his estate by clause 5 of the said will which provides as follows: ‘5. MY TRUSTEES shall hold the residue of my estate upon trust for such of my children [NAME] and [NAME] as shall be living at my death and if more than one then in equal shares absolutely’.

6.

The said second and third defendants are sued in their capacities as the beneficiaries of the will of the deceased.

7.

At the date of his death the deceased owned the following assets and liabilities:

8.

The net estate of the deceased at the date of his death was $ ......................

Part 2: Basis of causes of action and other material matters (plead the basis of each cause of action and material facts or matters on which each cause of action is based insofar as not addressed in Part 1) Part 3: Remedies and ancillary remedies (set out remedies and ancillary remedies sought) 1.

That such provision as the court may think fit be made out of the estate of [NAME] deceased for the maintenance, education and advancement in life of the plaintiff.

2.

That the costs of this application be paid out of the estate of the said deceased.

3.

Such further or other order as to the Court seems fit.

Certificate: This pleading is put forward in accordance with the instructions of the plaintiff, (name) and it complies with the Supreme Court Civil Rules 2006. [page 475] Date: ..................................................................

Signed by (name) (role of party)/(role of party’s) solicitor (delete whichever is inapplicable) Item 4(e) Affidavit of the plaintiff

[Reference and title as in item 1(e)] AFFIDAVIT OF THE PLAINTIFF (with respect to beneficiaries and potential claimants) Form 33 I, [PLAINTIFF] of [ADDRESS] in the State of South Australia, [OCCUPATION] SWEAR ON OATH/DO TRULY AND SOLEMNLY AFFIRM: 1.

I am the plaintiff.

2.

The names and address of all of the persons within s 6 of the Inheritance (Family Provision) Act 1972 who may be entitled to claim under the Act and all of the beneficiaries in the estate of the deceased are: A.

3.

[Persons who may be entitled to claim] ........................................................................................ B. [Beneficiaries] ........................................................................................ Except where otherwise appears I know the facts deposed to herein of my own knowledge.

Sworn/Affirmed by the abovenamed deponent

at on ............................................ (signature of deponent) Before me

............................................ (signature of attesting witness) [page 476]

Item 5(e) Notice

[Reference and title as in item 1(e)] Form 57 NOTICE TO POTENTIAL CLAIMANT OF CLAIM TO: (name of potential claimant) Notice The Plaintiff, (name) of (address) being a [state relationship to the deceased eg son, widow etc] of (name of deceased) late of (state last address of deceased) has instituted this action (action no) in the Supreme Court of South Australia on (date of issue of summons) seeking an order under the Inheritance (Family Provision) Act 1972 for provision out of the estate of the deceased (if applicable) over and above that given by the last will (or on the intestacy of (name deceased)).

Action required If you also have grounds to make such a claim, and wish to do so, you should file a Statement of Claim in the action seeking such an order within 28 calendar days after the service of this notice to you. Under s 8(1) of the Inheritance (Family Provision) Act 1972, your application should be served on the executor (administrator) within 6 months from the granting of Probate (Letters of Administration), though the Court has power to extend that time. If you wish to make a claim, you should seek legal advice as soon as possible. Date: ............................................ Signed by (name) Plaintiff/Plaintiff’s solicitor (delete whichever is inapplicable) [page 477]

Item 6(e) Interlocutory application

[Reference and title as in item 1(e)] Form 26 Rule 131(1) INTERLOCUTORY APPLICATION

TO THE PLAINTIFF: (name) of (address) and TO THE DEFENDANT: (name) of (address) The Potential Claimant, (name) seeks the following orders or directions: 1.

That the Potential Claimant (NAME) be joined as a party to the within proceedings.

2.

That the costs of the Potential Claimant in this application be paid out of the estate of (NAME).

3.

Such further or other orders as the Court deems fit.

Endorsements Application issued pursuant to s 8(7) of the Inheritance (Family Provision) Act 1972 and Rule 314(5) of the Supreme Court Civil Rules 2006. Hearing You will be notified separately of the time and place of the hearing of the application. Date: .................................................................. Potential Claimant/Potential Claimant’s solicitor (delete whichever is inapplicable) [page 478]

Tasmania Item 1(f) Originating application IN THE SUPREME COURT OF TASMANIA HOBART REGISTRY No of 20 ...................... IN THE MATTER of the Estate of the late _______ and IN THE MATTER of the Testator’s Family Maintenance Act 1912 CD EF

Applicant Respondents

ORIGINATING APPLICATION TO: AND TO:

EF of in Tasmania Any other person served with this Application.

The Applicant, applies for the following orders: 1.

That such provision as the Court thinks proper be made for the Applicant out of the estate of the late ............................................

2.

Orders as to service of this originating application.

3.

Any further orders deemed appropriate.

4.

An order as to costs.

DATED the

day of 20 ........... ______________________ per: Practitioners for the Applicant

The Applicant’s address for service is ...................... in Tasmania. NOTICE OF HEARING THIS APPLICATION has been set down for hearing before the Associate Justice in Chambers at the Supreme Court Building, Salamanca Place, Hobart in Tasmania on the … day of … 20 … at … o’clock in the forenoon. Filed the … day of … 20 ........... REGISTRAR [page 479] Estimated Hearing Time: … minutes *NOTICE TO PERSON SERVED Take notice that — 1.

If you wish to participate in these proceedings, you should, within eight (8) days following the service of this application on you, lodge a Notice of Appearance at a Registry of the Supreme Court and serve a sealed copy on the Applicant at the address for service. Service may be effected by pre-paid post.

2.

Forms of Notice of Appearance may be obtained from any Registry of the Court. These are located at Salamanca Place, Hobart, Cameron Street, Launceston and Alexander Street,

Burnie. 3.

If you fail to lodge, and serve on the Applicant, a Notice of Appearance within the time stated, or thereafter fail to attend personally or by practitioner at the hearing, such orders may be made and proceedings taken as the Court [or judge] may think just and appropriate without notice to you. Item 2(f) Form of order for directions [Reference and title as in item 1(f)]

Orders: 1.

Within 28 days the respondent is to cause to be filed and served an affidavit annexing a copy of the Probate of the Will, the death certificate, the names and addresses of the beneficiaries, and a copy of the short form affidavit of assets and liabilities. In addition, the affidavit is to contain a list of the names and addresses of all persons falling within the class specified in the Testator’s Family Maintenance Act 1912, s 3A.

2.

The directions hearing stands adjourned to ...................... on ......................

Costs: Special Remarks of the Master (if any) Date: ............................................ Master’s Associate

Item 3(f)

Form of order

[Reference and title as in item 1(f)] Order BEFORE DATE MADE

The Honourable Justice ...................... dated the ...................... day of ...................... [page 480]

ORIGINATING PROCESS HOW OBTAINED On the hearing of the originating application filed by the applicant on ...................... OTHER MATTERS That a certified copy of these Orders be made upon the Probate of the last Will and Testament of the late ................................................................... Certify for Counsel THE COURT ORDERS 1.

That further provision be made for the applicant out of the residuary estate of the Deceased by payment to him/her of the sum of $ ......................

2.

That a certified copy of this order be made upon the probate of the will of the Deceased.

3.

Costs order — set out order as to costs.

AND I CERTIFY that this was a matter proper for the attendance of Counsel. .................................................................. JUDGE

Victoria Item 1(g) Notice requiring notification of the making of a grant IN THE SUPREME COURT OF VICTORIA IN ITS PROBATE JURISDICTION IN THE MATTER of *, deceased and IN THE MATTER of a proposed application under Part IV of the Administration and Probate Act 1958 in which * — will be the Plaintiff REQUEST FOR NOTICE OF MAKING OF GRANT Rule 6.07(1) FORM 3-6A Date: Filed on behalf of

The Plaintiff

[page 481] Filed by

Solicitor’s Code: Reference: Solicitors, Telephone: DX: To the Registrar of Probates: Take notice that the proposed plaintiff intends to make an application under Part IV of the Administration and Probate Act 1958 for provision or for further provision out of the estate of the abovenamed Deceased. Accordingly, you are required to give notice to the proposed plaintiff of the making of any grant of representation in relation to the will or estate of the abovenamed Deceased. Particulars of the Deceased Surname: Given names: In the will *and codicil called: Last residential address: Last known occupation: Date and place of birth: Date and place of death: Particulars of the proposed Plaintiff Surname: Given names: Occupation:

Residential address: Address for service: Relationship to deceased: .......................................................................... Solicitors for the Applicant

Item 2(g) Originating motion seeking order for family provision Form 5B ORIGINATING MOTION IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION TESTATORS FAMILY MAINTENANCE LIST S CI 2016 ...................... [page 482] IN THE MATTER of Part IV of the Administration and Probate Act 1958 and IN THE MATTER of the Will and Estate of *** Between

*

— Plaintiff and *

— (Who is/are sued as the Executor(s) of the Will of the abovenamed Deceased) (Who issued pursuant to Rule 16.04(2) of Chapter II of the Rules) Defendant(s) Date: Filed on behalf of: The Plaintiff Filed by Solicitors,

Solicitor’s Code: Reference: Telephone: DX:

TO THE Defendant TAKE NOTICE that this proceeding by originating motion has been brought against you by the Plaintiff for the relief or remedy set out below. IF YOU INTEND TO DEFEND the proceeding YOU MUST GIVE NOTICE of your intention by filing an appearance within the proper time for appearance stated below. YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed by — (a) filing a ‘Notice of Appearance’ in the Prothonotary’s Office in the Law Courts, 436 Lonsdale Street, Melbourne, or where the

originating motion has been filed in the office of a Deputy Prothonotary, in the office of that Deputy Prothonotary; and (b) on the day you file the Notice, serving a copy, sealed by the Court, at the Plaintiff’s address for service, which is set out at the end of this originating motion. IF YOU FAIL to file an appearance within the proper time, the Plaintiff MAY OBTAIN JUDGMENT AGAINST YOU without further notice. IF YOU FILE an appearance within the proper time the Plaintiff cannot obtain judgment against you except by application to the Court after notice to you by summons. [page 483] THE PROPER TIME TO FILE AN APPEARANCE is as follows (a) where you are served with the originating motion in Victoria, within 10 days after service; (b) where you are served with the originating motion out of Victoria and in another part of Australia, within 21 days after service; (c) where you are served with the originating motion in Papua New Guinea, within 28 days after service; (d) where you are served with the originating motion in New Zealand under Part 2 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth, within 30 working days (within the meaning of that Act) after service or, if a shorter or longer period has been fixed by the Court under s 13(l)(b) of that Act, the period so fixed; (e) in any other case, within 42 days after service of the

originating motion. FILED THIS ORIGINATING MOTION is to be served within one year from the date it is filed, or within such further period as the Court orders. RELIEF OR REMEDY SOUGHT 1.

The abovenamed deceased died on ...................... leaving a will dated … (‘the Will’) [or alternatively, who died intestate on ......................]

2.

The Defendant is sued as the executor of the will of the Deceased to whom a grant of probate (or Letters of Administration with the Will annexed or Letters of Administration) was made on ...................... [or alternatively] The Defendant is sued pursuant to Rule 16.04(2) of Chapter II of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 as being a person having a substantial interest in opposing the application.

3.

In the Inventory accompanying the Defendant’s application for a grant, the net estate was stated as $ ......................

4.

The Plaintiff is: (a) the [here state relationship e.g. a daughter] of the deceased; (b) an eligible person within the definition of that phrase in s 90(f) of the Administration and Probate Act 1958, as amended (‘the Act’); and (c) a person who has brought the proceeding herein within six (6) months after the date of the grant of probate of the Will, being the time specified in s 99 of the Act, and

otherwise in accordance with the Act and the Rules made under it. 5.

Pursuant to s 90A of the Act, the Plaintiff is thereby entitled to apply for a family provision order pursuant to s 91 of the Act and by the proceeding herein makes such an application. [page 484]

6.

Pursuant to s 91(2)(c) of the Act, the Plaintiff says that the deceased owed her a moral duty to provide for her proper maintenance and support.

7.

Pursuant to s 91(2)(d) of the Act, the Plaintiff says the distribution of the deceased’s estate effected by the Will is not such as to make adequate provision for her proper maintenance and support.

8.

The Plaintiff claims [specify the extent of the relief sought] or, in the alternative, such amount of provision for his/her proper maintenance and support as the Court thinks fit having regard to the matters which the Court must take into account pursuant to s 91(4)(a), (b) & (c) and s 91(5)(a) and s 91A of the Act.

9.

Pursuant to s 97 of the Act, the Plaintiff seeks a family provision order: (a) which specifies the amount and nature of such provision; (b) which specifies the manner in which such provision shall be raised or paid out and from what part of the deceased’s estate; (c) which states any conditions, restrictions or limitations imposed by the Court; and

(d) which orders that the defendant pay his/her costs of and incidental to the Application. 1.

Place of trial:

2.

This originating motion was filed for the Plaintiff by ............................................

3.

The address of the Plaintiff is ............................................

4.

The address for service of the Plaintiff is care of his/her solicitors .....................

5.

The address of the Defendant is ......................

[The Originating Motion must be filed with an Overarching Obligations Certificate of the Plaintiff and a Proper Basis Certificate of the Plaintiff’s legal practitioner in accordance with the requirements of Part 4.1 of the Civil Procedure Act 2010.]

Item 3(g) Summons for directions

[Heading as in item 2(g)] SUMMONS FOR DIRECTIONS Date: Filed on behalf of Filed by

The Plaintiff Solicitor’s Code: [page 485]

Solicitor’s name and address

Reference: Telephone:

TO THE Defendant You are summoned to attend before the Court on the hearing of an application by the plaintiff for Directions as to the further conduct of this proceeding. The Application will be heard before the Associate Judge in Court No. 2, Ground Floor, 436 Lonsdale Street Melbourne, on 20 ...................... at 10.30 am or so soon afterwards as the business of the Court allows. FILED: [Prior to the first directions hearing the Plaintiff must file and serve: (a) either: i.

where the value of the estate exceeds $500,000 — an affidavit of the Plaintiff which includes the matters set out in Schedule 1 of the Testators Family Maintenance List Practice Note No 7 of 2015; or

ii.

where the value of the estate is less than $500,000 — a position statement which includes the matters set out in Schedule 1; and

(b) an affidavit of the Plaintiff’s solicitor estimating the costs and disbursements calculated on the standard basis up to and including the completion of mediation.] Item 4(g) Orders made on the hearing of a summons for directions

[Heading as in item 2(g)] Upon the Plaintiff stating to the Court by her counsel that she seeks further provision from the estate to the extent of [one-half] of the net estate THE COURT ORDERS AND DIRECTS THAT 1.

By ...................... the Plaintiff send by prepaid ordinary post to each of the following persons, namely a notice in the form of the Schedule.*

2.

Each of the persons named in Paragraph 1 hereof has leave to apply to be added as a Defendant to the proceeding, provided that any such application is made by summons returnable on or before .............................*

3.

By 4.00 pm on ...................... the Plaintiff file and serve any further affidavit or affidavits on which the Plaintiff desires to rely. [page 486]

4.

By 4.00 pm on ...................... the Defendant file and serve any affidavit on which the Defendant desires to rely.

5.

By 4.00 pm on ...................... the Plaintiff file and serve any affidavit on which the Plaintiff desires to rely in reply.

6.

The proceeding is referred to mediation by a mediator to be agreed between the parties, and in default of agreement to be appointed by the Court, such mediation to be concluded by … . (alternatively, the proceeding be referred to mediation by an

associate judge or a judicial registrar, such mediation to be concluded by ....). 7.

The mediation shall be attended by those persons who have the ultimate responsibility for deciding whether to settle the dispute and the terms of any settlement, together with the lawyers who have ultimate responsibility to advise the parties in relation to the dispute and its settlement.

8.

The costs of the mediation in the first instance shall be paid equally by the parties but otherwise those costs are reserved to the trial judge.

9.

Not more than 14 days and not less than 7 days before the date fixed for (a) the mediation (b) the trial the Defendant must make, file and serve an affidavit setting forth the financial position of the estate so far as it is known to them.

11. Within 14 days after the date fixed for the mediation, the Mediator must notify the TFM Associate whether or not the mediation has concluded. 12. The further hearing of this application is adjourned to ...................... at ...................... in the Court 2, 436 Lonsdale Street Melbourne. 13. Each party has liberty to apply. 14. The costs of this application are reserved. SCHEDULE Dear Sir/Madam,

Re: The will and estate of * (deceased) Proceeding No. * in the Supreme Court of Victoria. We have been directed by the Honourable Associate Justice ...................... of the Supreme Court of Victoria to notify you that a proceeding has been commenced in the Court by * the * of the abovenamed Deceased, by which *she is seeking provision / further provision out of the estate of the Deceased. The proceeding is brought pursuant to Part IV of the Administration and Probate Act 1958. We are the solicitors for the Plaintiff. [page 487] The proceeding was commenced against * and * who were the executors named in the will of the abovenamed Deceased and to whom probate of the will has been granted by the Court. If the Court were to order that such provision as the Plaintiff claims be made for her, the effect of that order might be to reduce or extinguish your entitlement as a beneficiary under the will of the Deceased. On ...................... the Honourable Associate Justice ordered that you have leave to apply to be added as a defendant to the proceeding. Any such application by you must be made by summons returnable on or before ...................... The order granting you such leave is Paragraph 2 of the Order made on ......................, and a copy of that order is enclosed herewith for your information. Copies of any of the documents referred to in the Order, including the Plaintiff’s affidavit and a copy of the Deceased’s will, may be inspected by arrangement with the writer. If you wish to take advantage of your opportunity to apply to be added as a defendant to the proceeding it is suggested that you

seek advice from a solicitor as soon as possible and take to the solicitor this letter and the copy of the order enclosed herewith. The Honourable Associate Justice ............................. has authorized us to inform you that although legal costs incurred by a party to a proceeding of this type usually are allowed by the Court out of the estate of the deceased, it is unlikely that more than one set of legal costs of separately represented parties with the same or a similar interest will be allowed. Yours faithfully, ............................................ * Orders 1 and 2 and the Schedule letter are not required in all cases but: (a) are required if the defendant legal personal representative is, e.g. as a result of being beneficially interested under the Will, not able to act impartially in the interests of all beneficiaries; or (b) will generally be made where charities are beneficiaries. Item 5(g) Example of terms of settlement

[Heading as in item 2(g)] TERMS OF SETTLEMENT Whereas A.

The abovenamed Deceased died on ............................................

B.

The Deceased’s last will is dated

............................................ [page 488] C.

Probate of the will was granted to the Defendant

D.

The Plaintiff is a ...................... of the Deceased.

E.

By originating motion the Plaintiff sought an order making further provision for her maintenance and support out of the estate of the Deceased.

F.

The Defendant and the Plaintiff have agreed to settle the Plaintiff’s said claim upon the terms and conditions hereinafter set forth.

It is agreed as follows 1.

[Where the plaintiff, or beneficiaries whose interests are affected by the compromise, is not or are not of full age and capacity] These Terms of Settlement are subject to and conditional upon the approval of the Court.

2.

The Defendant agrees to pay out of the estate of the Deceased and the Plaintiff agrees to accept in full settlement of her said claim, the sum of $[the Settlement Sum], inclusive of the Plaintiff’s costs and disbursements including all costs reserved.

3.

The Plaintiff agrees to accept the Settlement Sum which is inclusive of her costs and disbursements as aforesaid — (a) in full satisfaction of and in substitution for her entitlement under the will to a ............................................ (b) in full settlement of this present claim pursuant to the provisions of Part IV of the Administration and Probate Act 1958 for provision to be made for her maintenance

and support out of the estate of the Deceased; and (c) in full satisfaction of all other claims or rights which she had, now has, or may hereafter have against the estate of the Deceased or to participate in the distribution of the estate of the Deceased, or in any other way whatsoever. 4.

The Settlement Sum shall be paid to the Plaintiff’s Solicitors Messrs *** for the Plaintiff on or before ......................

5

The Defendant agrees to make available for collection and retention by the Plaintiff, at a time and place to be agreed between the parties’ solicitors, the personal chattels listed in the Schedule annexed hereto.

6.

Upon payment of the Settlement Sum and upon the items listed in the annexed Schedule being made available to the Plaintiff — (a) the Plaintiff agrees that she will thereupon release and forever discharge the Defendant (both personally and in his representative capacity) and the estate of the Deceased, from all actions claims and demands which she had, now has, or may hereafter have, and which are described in Paragraph 3 hereof; and [page 489] (b) the Defendant agrees that he will thereupon release and forever discharge the Plaintiff from all actions claims and demands which he or the estate had, now have, or may hereafter have, arising out of or in connexion with the estate of the Deceased.

7.

If the matter cannot be disposed of by orders being made ‘on

the papers’, then the Plaintiff agrees to be represented at the adjourned hearing of the summons for directions and, subject to the Settlement Sum having been then paid to her solicitors, to seek an order that the proceeding be dismissed without any adjudication upon its merits, and that there be no order as to costs. The Defendant’s solicitors will provide to the Plaintiff’s solicitors a letter: (a) consenting to orders being made that the proceeding be dismissed without any adjudication upon its merits, and that there be no order as to costs; (b) [if any direction or notice has been required to be given to non-parties, that the such direction or notice has been complied with]; & (c) confirming [if it is the case] that the orders sought do not affect the interests of any minor or any person under a disability. 8.

By his execution of these Terms of Settlement the residuary beneficiary under the will, *** signifies his consent to the settlement of the Plaintiff’s claim upon these terms.

9.

Each signatory who signs on behalf of any other person represents and warrants that he or she has full power and authority on behalf of the person on whose behalf he or she signs to enter into these Terms of Settlement.

10. These Terms of Settlement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument. 11. The parties hereto agree to keep these terms of settlement confidential and not to disclose any of the matters appearing in these terms to any other person save that this obligation does not apply to any information which

(a) is reasonably required to be disclosed to a professional adviser; (b) is required by law to be disclosed; (c) is reasonably required to be disclosed to any Court; or (d) is reasonably required to be disclosed to enforce or perform these Terms of Settlement. Dated: ............................................ [page 490]

Item 6(g) Consent order making provision for an infant or a person otherwise under a disability

[Heading as in item 2(g)] ORDERS APPROVING COMPROMISE OF A CLAIM BY [OR AFFECTING] A MINOR OR A PERSON OTHERWISE UNDER A DISABILITY ASSOCIATE JUDGE: DATE GIVEN: ORIGINATING PROCESS: HOW OBTAINED: ATTENDANCE: OTHER MATTERS:

The Honourable Associate Justice ...... The ...... day of ...... 2 ......

Originating Motion filed on … Plaintiff’s Summons filed

...................... On the papers The Plaintiff is a minor born on . who brings this action by her Litigation Guardian … [alternatively] The Plaintiff is a person under a disability who brings this action by her Administrator State Trustees Limited who, on . were appointed Administrator by order of the Victorian Civil and Administrative Tribunal pursuant to s 46 of the Guardianship & Administration Act 1986. Terms of Settlement (the Terms) have been executed which, subject to and conditional upon approval by the Court, compromise the proceeding on the basis that … (the Compromise) By their execution of the Terms, the Plaintiff and the Defendant consent to the Compromise The Court has read the affidavit of … sworn … and the exhibits

thereto, including the opinion of … of Counsel dated … The Court is satisfied that the distribution of the estate of the Deceased as effected by his will dated ...................... is such as not to make adequate provision for the proper maintenance and support of the Plaintiff [page 491] 1.

The Compromise is approved.

2.

Within 30 days of the service of an authenticated copy of this order on the solicitors for the Defendant: (a) The Defendant shall pay by way of provision out of the estate for the maintenance and support of the Plaintiff the sum of $….; (b) The said sum shall be paid to the Associate Justice who is the Senior Master under r 79 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) to be invested for the benefit of the Plaintiff [until he attains 18 years of age] or [until further order].

3.

The Plaintiff’s costs and expenses of and incidental to the proceeding, including any reserved costs, be fixed in the sum of $… and be paid out of the estate.

4.

The costs and expenses of the Defendant of and incidental to this proceeding, including any reserved costs, be paid or retained out of the estate on an indemnity basis.

5.

An authenticated copy of this Order be annexed to the probate of the will of the abovenamed deceased dated ......................

6.

On compliance with orders 2 to 5 above, the proceeding shall stand dismissed.

7.

The exhibits to the affidavit of … be retained on the Court file.

8.

Liberty to apply is reserved to the parties.

9.

Subject to any further or other order pursuant to r 28.05 of the Rules, the affidavit in support of the application for approval of the Compromise, and the memorandum of advice of Counsel which is exhibited to the affidavit, shall remain confidential other than to the Plaintiff and her legal representatives and the Senior Masters staff for the purposes of any application in relation to the management of funds in Court.

Item 7(g) Consent order for family provision

[Heading as in item 2(g)] CONSENT ORDERS JUDGE: DATE GIVEN: ORIGINATING PROCESS: HOW OBTAINED:

Originating Motion filed on ......................

[page 492] ATTENDANCE:

OTHER MATTERS:

At trial commencing on ...................... Mr/Ms ...................... of Counsel for the Plaintiff Mr/Ms ...................... of Counsel for the Defendant The Court being satisfied that the distribution of the estate of the Deceased as effected by his will dated ...................... is such as not to make adequate provision for the proper maintenance and support of the Plaintiff

THE JUDGMENT OF THE COURT IS THAT 1.

The Plaintiff receive by way of provision out of the estate the sum of ...................... Thousand Dollars ($,000), such sum to be paid forthwith to the Plaintiff’s Solicitors, ...................... out of the residuary estate.

2.

[alternatively] Further provision be made for the Plaintiff out of the estate as follows, and order that the estate be distributed on the footing that, in lieu of the provision in clause ...................... of the will, there were bequeathed to the Plaintiff a legacy of $ ......................

3.

The said sum of $ ...................... bear interest at the rate of …% per annum as from ...................... 20 ...................... until payment.

4.

The costs of the Plaintiff of and incidental to this proceeding, including all reserved costs, be taxed in default of agreement on a standard basis and paid out of the estate.

5.

The costs of the Defendant Executor of and incidental to this proceeding, including all reserved costs, be taxed in default of agreement on an indemnity basis and paid or retained out of the estate.*

6.

The costs of the Second Defendant, as representing the infant children of the plaintiff referred to in the will of the Deceased, including all reserved costs, be taxed in default of agreement on a standard basis and paid out of the estate.

7.

An authenticated copy of this Order be annexed to the probate of the will dated ...................... of the abovenamed deceased.

8.

Liberty be reserved to the parties to apply. [page 493]

Item 8(g) Originating motion seeking extension of time

[Heading as in item 2(g)] Form 5C ORIGINATING MOTION BETWEEN PARTIES COMMENCED PURSUANT TO RULE 45.05 TO ...................... THE DEFENDANT

TAKE NOTICE that this proceeding by Originating Motion has been brought against you by the Plaintiff for the relief or remedy set out below. IF YOU INTEND TO DEFEND the proceeding you must attend before the Court at the time and place named in the Summons served with this Originating Motion. FILED: THIS ORIGINATING MOTION is to be served within one year from the date it is filed, or within such further period as the Court orders. INDORSEMENT OF CLAIM 1.

The Plaintiff is: (a) a daughter of the abovenamed *** deceased; (b) an eligible person within the definition of that phrase in s 90(f) of the Administration and Probate Act 1958, as amended (‘the Act’);

2.

The Defendant is sued as the executor of the will and trustee of the estate of the deceased (the estate).

3.

No final distribution of the estate has been made.

4.

Pursuant to s 91(2)(c) of the Act, the Plaintiff says that the deceased owed her a moral duty to provide for her proper maintenance and support.

5.

Pursuant to s 91(2)(d) of the Act, the Plaintiff says the distribution of the deceased’s estate effected by the Will is not such as to make adequate provision for her proper maintenance and support.

THE PLAINTIFF SEEKS THE FOLLOWING ORDERS A.

That the Plaintiff have leave pursuant to r 45.05 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) to commence proceedings in this form, and that the requirements of r 5.03(1) and r 8.02 of the Rules be dispensed with.

B.

That pursuant to s 99 of the Administration and Probate Act (the Act) the time within which the Plaintiff be permitted to commence [page 494] an application pursuant to s 90A of the Act for further provision out of the estate of the Deceased be extended to such date as the Court may direct.

C.

That this Originating Motion be heard and determined forthwith or at such date as the Court may order.

D.

That, upon an order being made extending the time in which the Plaintiff be permitted to commence an application pursuant to s 90A of the Act provision be made for the Plaintiff’s maintenance and support pursuant to Part IV of the Act by: (a) providing her * with an absolute interest in * one half of the estate; or alternatively (b) by making such other provision as the Court thinks fit; and (c) making such further and other orders and directions as may be necessary.

E.

That an order be made in relation to the costs of this

proceeding. [Complete as in Item 2(g)]

Item 9(g) Summons on originating motion seeking an extension of time

[Heading as in item 2(g)] SUMMONS ON ORIGINATING MOTION To: ...................... The Defendant You are summoned to attend before the Court on the hearing of an application by the Plaintiff * for the following orders and directions: 1.

That the Plaintiff have leave pursuant to r 45.05 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) to commence proceedings in this form, and that the requirements of r 5.03(1) and r 8.02 of the Rules be dispensed with.

2.

That pursuant to s 99 of the Administration and Probate Act (the Act) the time within which the Plaintiff be permitted to commence an application pursuant to s 90A of the Act for further provision out of the estate of the Deceased be extended to such date as the Court may direct.

3.

That this Originating Motion be heard and determined forthwith or at such date as the Court may order.

4.

That such further or other orders be made as the Court thinks fit.

5.

That an order be made in relation to the costs of this proceeding.

The Application will be heard before the Associate Judge in Court No. 2, Ground Floor, 436 Lonsdale Street Melbourne, on ...................... 20 … at … or so soon afterwards as the business of the Court allows. [page 495] If the application is heard by an Associate Judge, he or she may, as appropriate: — (a) hear and determine the application or refer it to another Associate Judge or Judge of the Court for hearing and determination; (b) by consent of the defendant, give the judgment; (c) place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise. If the application is heard by a Judge of the Court, he or she may make any order he or she considers appropriate. Filed This Summons was filed by … of …., solicitors for the Plaintiff.

Western Australia Item 1(h) Originating summons

IN THE SUPREME COURT OF WESTERN AUSTRALIA

No of 20 ...............

IN THE MATTER of s 6(1) of the Family Provision Act 1972 AND IN THE MATTER of the Estate of ............................................ late of ........................................................................................ in the State of Western Australia (deceased) BETWEEN ...................... Plaintiff and ...................... (As Executor of the Estate of First Defendant ...................... DECEASED) AND ...................... (AS SOLE Second Defendant BENEFICIARY UNDER THE WILL OF ..................... DECEASED) [page 496] ORIGINATING SUMMONS Appearance required Date of document:

Files on behalf of the Plaintiff Prepared by: (name) Solicitors, (address)

Telephone _______________________ Facsimile _______________________

LET ...................... as Executor of the will of ...................... (deceased) and ...................... (as universal beneficiary of the will of the said deceased) ...................... of within 10 days of service of this summons upon them exclusive of the dates of service cause an appearance to be entered for them to this Summons and thereafter attend before the Judge sitting to hear such Summons at such time and place as shall hereafter be fixed for such hearing. This Summons is issued upon the application of the plaintiff ...................... of ...................... in the State of Western Australia who claims to have been left without adequate provision for her proper maintenance, support, education or advancement in life from the estate of ...................... and as the only daughter of the said deceased who died on the ...................... of ............................................ 20.. being then domiciled in the State of Western Australia and who claims that such provision as this Court thinks fit should be made for her out of the estate of the deceased and that orders be made: a.

specifying the amount and nature of such provision;

b.

specifying the manner in which the provision shall be raised or paid out of the same and from what part or parts of the estate of the deceased;

c.

stating any conditions, restrictions or limitations imposed by the court; and

d.

stating the manner in which costs of and incidental to this

application shall be paid. Dated the ...................... day of ............................................ 20 .. This summons was taken out by ...................... solicitors for the plaintiff whose address for service is ...................... Note: If the First Defendant and/or Second Defendant does not enter an appearance at the Central Office, Supreme Court, Perth within the [page 497] time abovementioned, and thereafter attend before the Judge sitting to hear such Summons at such time and place as shall hereafter be fixed for such hearing, such order will be made and proceedings taken as the Judge thinks just and expedient. Item 2(h) Summons for directions

[Reference and title as in item 1(h)] SUMMONS FOR DIRECTIONS Date of document: Files on behalf of the Plaintiff Prepared by: (name) Solicitors,

Telephone _______________________

(address)

Facsimile _______________________

Let all parties concerned attend before the Master in Chambers on the ...................... day of ...................... 20 ... at the hour of..... upon the hearing of an application by the plaintiff for the following directions: 1.

That no person need be added as a party or served with notice of the application;

2.

That the defendants be at liberty to file an affidavit or affidavits in answer to the affidavit filed by the plaintiff, the same to be filed within 30 days;

3.

That within 21 days thereafter the plaintiff be at liberty to file a further affidavit or affidavits in response to those filed by the defendants;

4.

There be an order that the deponents in such affidavits be cross-examined at the hearing upon their affidavits;

5.

The matter then be set down for hearing;

6.

Further or other directions;

7.

An order that the costs of this summons be in the cause;

8.

The application do otherwise stand adjourned sine die with liberty to apply.

Dated the .......... day of ................... 20 ...... ......................................... (name) Solicitors for the plaintiff

[page 498]

Item 3(h) Order for directions

[Reference and title as in item 1(h)] ORDER FOR DIRECTIONS Form 10 Order for Directions: Family Provision Act 1972 (1) The existing defendant be designated first defendant [and described as executor of the will of the deceased]. (2) _________ be joined as second defendant. (3) Within _________ days of the date hereof the plaintiff do serve on the second defendant copies of the originating summons, the affidavits in support and this order. (4) Any affidavit by or on behalf of the second defendant in answer to the plaintiff’s affidavit be filed and served within _________ days from the time limited by the rules for entry of an appearance by the second defendant. (5) The costs of the application be costs in the cause. (6) The application do otherwise stand adjourned sine die with liberty to apply. Form 11 Order for Directions: Family Provision Act 1972 — Representative Defendant (1) The existing defendant be designated first defendant [and described as executor of the will of the deceased]. (2) _________ be joined as second defendant in his own right

and as representing _________ and _________. (3) Within _______ days of the date hereof the plaintiff do serve on the second defendant copies of the originating summons, the affidavit in support and this order. (4) Within days of the date hereof the plaintiff do serve the originating summons, the affidavit in support and this order on _________ and _________ who shall be at liberty to appear in these proceedings but at their own risk as to costs, and that they be bound by any order made in the proceedings. (5) Any affidavit by or on behalf of the second defendant in answer to the plaintiff’s affidavit be filed and served within _______ days of the time limited by the rules for entry of an appearance by the second defendant. (6) The costs of the application be costs in the cause. (7) The application do otherwise stand adjourned sine die with liberty to apply. [page 499]

Item 4(h) Final order

[Reference and title as in item 1(h)] FINAL ORDER Form 37 Final Order: Family Provision Act 1972 … and this Court being of the opinion that the disposition of the

deceased’s estate effected by his will [or the law relating to intestacy] is not such as to make proper provision for the proper maintenance, support, education or advancement in life etc of the plaintiff it is ordered that: (1) The will of the deceased be varied by providing that the whole of the estate be distributed to the plaintiff. or (2) The sum of $____ be paid to the plaintiff [from the residue of the estate]. [The order should state whether the sum is to bear interest, and if so, the rate payable and the date from which it is to be calculated: cf Administration Act 1904, ss 14(4) & (5); 143A]. (3) A certified copy of this order be included in the probate (letters of administration) and that the first defendant do produce the grant to the Court for that purpose. (4) The costs of all parties be taxed and paid by the first defendant out of the [residue of the] said estate.

[page 500]

Appendix II Family Provision Application Checklist 1

Introduction

The following checklist provides a guide to much of the information requiring consideration in an application for family provision. That each application is original and deserving of individual attention should be borne in mind, as should the following: ‘If checklists are used to guide the course of an interview or a matter, they are being misused. …’1 The checklist is largely a summary of matters relevant to an application as discussed in Chapters 2, 3, 4 and 5. In New South Wales the enquiries would be directed to the matters the court may have regard to as set out in s 60(2) of the NSW Act. The form of affidavit appearing as Annexure 1 to Practice Note No SC Eq 7 provides an appropriate framework for the information required and the order in which it should be set out in the plaintiff’s/applicant’s affidavit.

2

General information

It is assumed that, in the course of preliminary discussions with the proposed applicant, the following details will have been ascertained, namely: (a) the full name, residential address and occupation of the deceased; (b) the date of death of the deceased;2 (c) the age of the deceased at the date of death; (d) the solicitors acting in the estate’s administration; (e) whether the deceased died testate or intestate; [page 501] (f)

if testate, a copy of the will has been acquired or a written authority received from the proposed applicant, if a beneficiary, to acquire a copy;

(g) whether the size of the estate justifies an application;3 — as to the obtaining of details of the estate, see item 14 below; (h) whether a grant has been obtained and, if so, when. Victoria: If a grant has not been obtained, file notice, etc under Rule 18B of Supreme Court (Probate and Administration) Rules with Registrar of Probates.4

2.1

Domicile of the deceased

If there is any doubt as to deceased’s domicile, obtain evidence relating to this issue.5

3

Establish eligibility of proposed applicant to make a claim See Chapter 4 generally.

4

Is the application within time?

As to time limits which apply, see text 5.3. See also text 5.4 and 5.5. If the application is not within time, establish whether grounds exist to apply for an extension of time in which to commence proceedings: as to which, see text 5.9–5.11.

5

Basic personal details proposed applicant

of

the

(a) full name; (b) residential address; (c) occupation; (d) address for correspondence if not the residential address — for example, if a PO box number; (e) home, business and mobile telephone numbers; (f)

email address;

(g) relationship to the deceased — for example, child, spouse, dependant; [page 502]

(h) age6/date of birth; (i)

gender (this is usually made clear by reference to the relationship to the deceased — for example, as son, daughter, husband, de facto wife).

6

Marital status

6.1

If married (but not to the deceased)

(a) number of years and date of marriage; (b) age of spouse; (c) whether living with spouse; (d) if separated, when; (e) financial support being received from spouse including that spouse’s income; (f)

any circumstances likely to affect such support, for example: (i)

age of spouse;

(ii) state of health of spouse; (iii) adverse employment prospects; (iv) other.

6.2

If divorced (but not from the deceased)

(a) when; (b) financial support being received from former spouse; (c) any circumstances likely to affect such support, for example: (i)

age of spouse;

(ii) state of health of spouse; (iii) adverse employment prospects; (iv) other.

7

State of health, including mental health/incapacities

(a) general details regarding capacity for self-support and/or medical and other future health costs; (b) name and address of medical practitioner/social workers/occupational therapist/physiotherapist and/or any other health care professionals involved in treatment, as appropriate; [page 503] — obtain medical/social worker reports, if relevant;7 (c) effect on earning capacity or future earning capacity;8 (d) costs incurred or to be incurred in obtaining medical or other treatment; (e) possibility of illness in the future.9

7.1

If intellectually disabled

(a) Arrange to obtain a report from: (i)

a medical practitioner on the concerning the proposed applicant:

following

matters

(A) his or her general state of health, with a full report on

any special health problems; (B) his or her life expectancy; (C) the possibility of improvement in his or her mental condition and the probability of him or her leading a normal life in the future; (D) the specific medical needs and/or appliances which may be needed in later life; (E) whether individual housing, if it can be provided from the estate, would benefit the applicant; and (F) costs of home care, including private care, where relevant; (ii) a social worker or other appropriate person on the following matters concerning the proposed applicant: (A) his or her ability to spend money; (B) the specific needs of the proposed applicant (for example, television set, reclining chair, clothing); (C) whether he or she would benefit from outings and, if so, how many per year should be provided for; (D) the need of the proposed applicant to visit relatives; (E) if it is possible or probable that improvement in his or her mental condition may occur, what extra provision is likely to be required; (F) the pension entitlement of the applicant; and (G) the need for private health insurance; (b) Consider appropriate person to be litigation guardian.10 [page 504]

8

Name, age and date of birth of any children or dependants of the proposed applicant

8.1

The maintenance requirements of such children or dependants, whether or not they reside at home, and, if not, their present circumstances.

8.2

Details of any special needs of such children or dependants, for example, health difficulties, special or remedial teaching requirements etc.

8.3

When will it no longer be necessary for the applicant to support and educate a child or other dependant?11

9

Station in life

9.1

The lifestyle which the proposed applicant has enjoyed.12

9.2

The influence of the deceased on such lifestyle (if any); for example, a child may have undertaken study with the support and encouragement of the deceased.13

10

Deceased’s maintenance or support of the proposed applicant, whether direct or indirect

10.1

Provision under the deceased’s will or on intestacy — even if no direct benefit was received, was there an indirect one such as estate left to proposed applicant’s children?14

10.2

Details of support, maintenance or assistance (financial or

otherwise) given by the deceased before death to the proposed applicant. The deceased may have made contributions to the proposed applicant of a financial and personal nature, or may have: (a) worked free of charge for the proposed applicant, whether in a business or domestic capacity; (b) made gifts or loans to the proposed applicant;15 [page 505] (c) established a trust under which the proposed applicant was a beneficiary or a potential beneficiary; or (d) provided rent-free accommodation.16 Whether such support, maintenance or assistance was for valuable consideration paid by the proposed applicant to the deceased.17

11

Financial circumstances proposed applicant

of

the

11.1

Details and value of assets of the proposed applicant owned either solely or jointly with any other person. (Care should be taken to ensure that the list of assets is exhaustive and that the values are realistic. Interests in trusts, partnerships and private companies should also be specifically addressed.)

11.2

Details and values of assets of the proposed applicant’s

spouse, if any, owned either solely or jointly with any other person. (Again, care should be taken to ensure that the list of assets is exhaustive and that the values are realistic.) 11.3

Income of the proposed applicant, if any, whether from a pension or otherwise.

11.4

Income of spouse of proposed applicant, if any, whether from a pension or otherwise.

11.5

Any circumstances which are likely to adversely affect such assets or income in the future.

11.6

Liabilities of the proposed applicant; for example, house payments, hire purchase payments, costs of maintenance of children or other persons by the proposed applicant, taxation liabilities and details of special financial liabilities or responsibilities.18

11.7

Whether the proposed applicant is a beneficiary or potential beneficiary under a trust and details of any distributions which have been made to the proposed applicant from the trust from time to time.19

11.8

The value of the proposed applicant’s superannuation entitlements.

11.9

Amount of any distribution received as a death benefit or reversionary interest from any superannuation fund of which the deceased was a member. [page 506]

11.10 The value of any interest in the estate to be taken by the proposed applicant.

12

Contribution to build-up of the deceased’s estate by the proposed applicant

Contributions may have been made to the building up of the estate of the deceased20 or its preservation. It may have been direct or indirect, for example: (a) wife’s maintenance of a stable home environment to enable deceased to devote full energies to the creation of assets; (b) participation in the operation of a business of the deceased by directly working in it, entertaining of clients, taking of telephone calls, keeping financial records and the like; (c) contribution to the building up of the estate of the proposed applicant’s father, who in turn left or gave benefits to his wife (when there is a claim by a stepchild against his or her stepmother’s estate); (d) moneys lent by the proposed applicant to the deceased in a way that caused an increase in the value of the estate of the deceased; (e) work performed by the proposed applicant for or on behalf of the deceased which relieved the deceased of the need to make payment for such work; for example, painting, lawn mowing, account work etc; (f)

13

any other support or assistance.

Relationship with the deceased

Details of the history and quality of the relationship between the proposed applicant and the deceased should be sought.21

(a) If the relationship has been poor, what were the reasons for that? (b) If there has been an estrangement: (i)

details of its duration;

(ii) reasons behind it — caused/maintained by the deceased? 22 and (iii) any reconciliation(s) and, if so, when?23 [page 507]

14

Value and location of the estate of the deceased

Details, value and location of the assets and liabilities of the estate of the deceased. Again, care should be taken to ensure that the details are accurate and the values realistic. The true value of the estate is a matter of fundamental importance in every application.24 It is always a relevant factor.25 In South Australia different rules apply to small estates (that is, less than $100,000).26 It is usual to seek this information from the executor or his or her solicitors, advising them of the purpose for which the information is sought, namely, a contemplated family provision application.27

15

Competing or other claims on the estate of the deceased

(a) Names, addresses, ages and dates of birth of beneficiaries

named in the will or other potential applicants; for example, children of the deceased, the deceased’s widow. (b) Their: (i)

relationship, if any, to the deceased;

(ii) relationship, if any, with the deceased (details if special); (iii) financial position, if known; (iv) special needs, if known; and (v) special basis of entitlement to the estate, if known. See Scales’ case28 where reference is made to the relevance not only of the nature, extent and character of the estate but also the other demands upon it. [page 508]

16

Any grounds for disentitlement or reduction of provision

The onus of proving disentitling conduct is on the person alleging it,29 but, more usually, misconduct tends to be used to reduce rather than defeat a claim.30 It is prudent to anticipate the possibility of such an allegation and inquiries should therefore be made of the proposed applicant to ascertain whether any such allegation might be raised. Matters considered relevant in this context have included: (a) the normal relationship between parent and child not having existed for a considerable period and both parties having ignored each other;31

(b) a child leaving home against the wishes of his or her parents;32 but compare the recent case of Re Avenell33 where an assertion of independence was not held to be disentitling conduct; (c) the commission of a serious crime of which the deceased was aware;34 (d) taking a sane testator to a mental hospital for the purpose of having him admitted;35 (e) chronic drunkenness;36 (f)

convicted of killing the deceased;37

(g) in the case of an applicant spouse: (i)

adultery;38

(ii) desertion;39 (iii) renunciation of marital obligation40 (merely being apart is not enough);41 [page 509] (iv) dishonesty;42 (v) misconduct after the death of the deceased;43 (vi) continuous domestic violence.44 The foregoing applies to applications generally. Considerations relevant to specific categories of applicant follow.

17

Widows/widowers simpliciter (whether first or subsequent)

(a) date of marriage and number of years married to the deceased; (b) brief history of the marriage including: (i)

any periods of separation and details of any proceedings past or present between the proposed applicant and the deceased;

(ii) details of any children of the marriage and any special care or attention they require/required (see also checklist item 8); (c) details of the relationship between the deceased and the proposed applicant, both during and, if relevant, after the marriage should have been obtained under checklist items 10 and 13.45

18

Widows/widowers — divorced

If divorced from the deceased:

New South Wales Applies to former spouse only if there are ‘factors warranting’, as to which, see text 2.58.

Queensland and Tasmania Must not have remarried and must have been receiving or entitled to receive maintenance from the deceased at the time of the deceased person’s death.

South Australia No conditions restrict eligibility.

Victoria and Western Australia Applies only to former spouses who have been receiving or were

entitled to receive maintenance from the deceased at the time of the deceased’s death. [page 510]

Australian Capital Territory and Northern Territory Applies to former spouses who were being maintained by the deceased at the date of death: (a) court from which decree was obtained; (b) date upon which decree became absolute; (c) details of the provisions for maintenance; (d) whether the maintenance was paid by way of court order or agreement (obtain a copy of the court order or agreement from the client. If not in the client’s possession, obtain written authority from client to collect same, for example, from the Family Court or another solicitor);46 (e) circumstances surrounding the separation which led to the divorce; (f)

is the proposed applicant the mother or father of the deceased’s children?

(g) if so, did she or he have the responsibility of the upbringing of the children? (h) length of time from the separation of the proposed applicant from the deceased until the deceased’s death; (i)

the course which the lives of the proposed applicant and the deceased have followed since the separation;

(j)

length of married life until separation;

(k) (l)

age of proposed applicant at date of marriage, date of divorce and date of deceased’s death; proposed applicant’s prospects of being self-supporting after death of deceased;

(m) has deceased provided in any deed of settlement for the proposed applicant’s future after the deceased’s death? (n) applicant’s prospects of remarriage; (o) where the deceased remarried: (i)

the needs of the second spouse, if known; and

(ii) the provisions for the second spouse made by the deceased both in the deceased’s lifetime and in the will, if known. [page 511]

19

Widows/widowers — de facto

If a connubial/de facto relationship:

Queensland (a) details of the time and circumstances surrounding the deceased and the proposed applicant commencing to live together as a couple on a genuine domestic basis;47 (b) confirmation of the continuance of the relationship for a continuous period of at least two years ending on the deceased’s death; (c) consider matters referred to in checklist item 17 mutatis mutandis.

New South Wales Person must have been living as deceased’s wife/husband at the time of the deceased’s death:48 (a) details concerning the above; (b) consider matters referred to in checklist item 17 mutatis mutandis.

Northern Territory Person must have been maintained by the deceased immediately before his or her death:49 (a) details concerning the above; (b) consider matters referred to in checklist item 17 mutatis mutandis.

South Australia (a) details of the time and circumstances surrounding the establishment of the connubial relationship; (b) confirmation of its continuance during a continuous period of five years terminating on either the death of the deceased or at some earlier date, or details of the periods aggregating five years of living with the deceased within six years of the relevant date. A declaration that proposed applicant is a ‘putative’ spouse is required: see Family Relationships Act 1975 s 11(3). If a ‘putative’ spouse by virtue of the birth of a child from the relationship of the proposed applicant and the deceased (whether or not the child has survived) (see Family Relationships Act 1975 s 11(1)(b)): (a) details concerning the above;

(b)

consider matters referred to in checklist item 17 mutatis mutandis. [page 512]

Victoria (a) Obtain details of the relationship. (b) Did the deceased have a responsibility to make provision for the de facto? (c) If so, detail reasons why.

Tasmania Person must have been in a significant relationship within the meaning of the Relationships Act 2003: (a) has the relationship been registered?; (b) if not, obtain details of all of the circumstances of the relationship.50

Western Australia Person must have been the deceased’s de facto widow who at the time of the death of the deceased was being wholly or partly maintained by the deceased, who was ordinarily a member of the house of the deceased, and for whom the deceased, in the opinion of the court, had some special moral responsibility to make provision: (a) details concerning the above; (b) consider matters referred to in checklist item 17 mutatis mutandis.

20

Infant children

(a) name, age and date of birth; (b) grade at school and school attended, if relevant; (c) details of any special need, for example: (i)

health difficulties (obtain details if relevant, including medical report);

(ii) special or remedial teaching requirements; (iii) special travel arrangements to attend school/remedial teacher/hospital; or (iv) special education or training needs resulting from child’s intended occupation (if child is, say, over 14 years of age); (d) special talents, for example: (i)

ballet classes, music lessons, sports coaching etc;

(e) general maintenance requirements, including details of where child resides, food, clothing and other expenses; (f)

consider (for Australia) cost of maintaining children as reported by Institute of Family Studies;51

(g) current sources of maintenance provision for child; and (h) consider appropriate person to act as next friend: see text 7.28. [page 513]

21

Adult daughters

21.1

If unmarried

(a) Is she equipped for a profession or skilled occupation?52 (b) Is she in a settled occupation with good economic prospects? 53

21.2

If married

See text 4.31.

22

Adult sons

(a) What are the needs of the son and to what extent can the son meet those needs through his own capacity and resources?54 (b) Is the son mature, able-bodied and capable of supporting himself? (c) Is the son unable to obtain work?55 An adult son is prima facie able to maintain and support himself and some special need or some special claim must, generally speaking, be shown to justify intervention by the court under the Act.56 Note that this rule does not apply in New South Wales.57 However, absence of special need does not necessarily mean that the claim must fail.58 Is there evidence of the type found to constitute special need or special claim? For example, where the adult son: (a) has a need arising from youth, inexperience in business and financial vulnerability as a recently married man;59 (b) has contributed to the building up of the testator’s estate;60 [page 514]

(c) has helped the testator in other ways;61 (d) has suffered from some physical or mental infirmity;62 (e) has suffered a financial disaster;63 (f)

has been unable to find employment;64

(g) has a number of dependants and is unable to provide for them;65 (h) has a need to pursue higher education;66 (i)

has a need for provision against insecurity from the possibility of illness or unemployment;67 or

(j)

has based his lifestyle on the expectancy that he would receive a share of his parent’s estate.68

23

Stepchildren

See comments under ‘Infant children’, item 20, ‘Adult daughters’, item 21, and ‘Adult sons’, item 22.

Australian Capital Territory and Northern Territory (a) Is the proposed applicant a child of a spouse of the deceased by a former marriage of the spouse? (b) Was the proposed applicant being maintained by the deceased immediately before his or her death?

New South Wales (a) Was the proposed applicant at any particular time wholly or partly dependent upon the deceased and a member of a household of which the deceased was or had been a member? 69

— details of dependency: nature, time etc.

(b) Are these factors warranting the making of the application?70 [page 515]

Queensland and Tasmania Is the proposed applicant a child of a natural parent who has survived the deceased, and was the marriage which produced that relationship still in existence at the date of death of the deceased?

South Australia (a) Is the proposed applicant a child of a spouse of the deceased by a former marriage? (b) Was the applicant being maintained by the deceased immediately before his or her death? (c) If not, was the applicant legally entitled to be maintained immediately before his or her death?

Victoria and Western Australia See text 4.42 and 4.36 respectively.

24

Other eligible applicants

See, generally, text 4.66–4.72.

25 25.1

Details to be obtained to resist a claim Beneficiaries

The information required from a beneficiary by the personal representative (or by the beneficiary’s legal representative, if the beneficiary chooses to be separately represented)71 is, generally speaking, not as extensive as that of a proposed applicant. It tends to be directed towards obtaining evidence contrary to that adduced by the applicant.

25.2

Personal details of beneficiary

See items 5 and 6 mutatis mutandis.

25.3

Financial circumstances of beneficiary72

See item 11 mutatis mutandis. If a beneficiary says nothing as to his or her financial position or other claims on the deceased’s bounty, the court is entitled to assume that the beneficiary has no special claim other than relationship and that, in particular, he or she has adequate resources upon which to live.73 [page 516]

25.4

Beneficiary under a disability

If a beneficiary is an infant or a person under an intellectual disability, consider appropriate person to act as guardian ad litem/litigation guardian: see text 7.29. See also items 7.1 and 20 mutatis mutandis.

25.5

Grounds for disentitlement or reduction of provision in relation to applicant

Does the beneficiary have any evidence of such conduct having

regard to the fact that the onus is on the beneficiary to prove same?74

25.6

Reasons given by deceased for reducing or failing to make provision for the applicant

Has the deceased given such reasons and, if so, do they relate to the character or conduct of the applicant such as to affect the form of the order that should be made?75 _______________________ 1.

J K de Groot and S A Karas, Solicitors’ Checklists, Butterworths, Sydney, 1988.

2.

A certificate of death should be obtained.

3.

See text 3.8.

4.

See text 5.5.

5.

See text 7.3.

6.

White v Barron (1980) 54 ALJR 333 at 334 per Barwick CJ and at 343–4 per Wilson J; Hughes v NTE&A (1979) 143 CLR 134 at 147 per Gibbs J; 53 ALJR 249 at 253.

7.

See text 4.55.

8.

See Courthope v Courthope [1939] 41 WAR 66.

9.

See Re Turner [1943] St R Qd 27; Penty v Mott (1984) 6 DLR (4th) 444.

10.

See text 7.28.

11.

Goodman v Windeyer (1980) 144 CLR 490 at 498.

12.

Re Heagerty (1915) 34 NZLR 905; [1916] GLR 64; Re Bell (1915) 34 NZLR 1067 at 1070; Ahearn v Ahearn [1917] St R Qd 167 at 170; Re Richardson [1920] SALR 24 at 46; Re Knight [1939] GLR 673 at 677; Re Wilson [1973] 2 GLR 359 at 362; Luciano v Rosenblum (1985) 2 NSWLR 65 at 69.

13.

See Re Adams [1967] VR 881.

14.

Re Baker [1962] NZLR 758; Scalone v Scalone [2000] NSWSC 1028.

15.

See text 2.15.

16.

Re Beaumont [1980] 1 All ER 266; Jelley v Iliffe [1981] 2 All ER 29.

17.

As to which, see text 4.16.

18.

See Hughes v NTE&A (1979) 143 CLR 134; 53 ALJR 249.

19.

See Re Brown [1972] VR 36.

20.

See Hughes v NTE&A (1979) 143 CLR 134; 53 ALJR 249. See also text 2.7 and 4.33.

21.

See Re Jennings [1940] GLR 546; compare Re Crewe [1956] NZLR 315; Re Calder [1950] GLR 465.

22.

Riches v Holdman [2001] WASC 321.

23.

Cooper v Dungan (1976) 9 ALR 93; 50 ALJR 539; Re Marchi (SC(Qld), Kneipp J, OS22/85, Townsville, 12 November 1987, unreported); Walsh v Perpetual Trustee Co (1992) ACL Rep 395 Vic 15.

24.

Blore v Lang (1960) 104 CLR 124 at 138.

25.

Bondelmonte v Blanckensee [1989] WAR 305.

26.

Rule 119.16.

27.

The executor is under a duty to inform the court as to the nature and subsequent disposition of estate assets: Re Simson [1950] Ch 38 at 44; Re Hodgson [1955] VLR 481 at 487.

28.

(1962) 107 CLR 9 at 19.

29.

Re K [1921] St R Qd 172; Re Ruxton [1946] VLR 334 at 335; Re Scott [1950] VLR 102 at 105.

30.

See text 2.34.

31.

Scales’ case (1962) 107 CLR 9.

32.

Re Hallahan [1918] 18 SR (NSW) 138.

33.

(1991) 13 QL Rep 5.

34.

Price v Roberts (1990) ACL Rep 395 NSW 9.

35.

Draper v Nixon [1999] NSWSC 629.

36.

Ray v Moncrief [1917] NZLR 234; Re Fletcher [1921] NZLR 649. See, generally, text 4.35.

37.

Troja v Troja (1994) 35 NSWLR 182.

38.

Re McGoun [1910] VLR 153; Re TM [1929] QWN 2; Packer v Dorrington [1941] GLR 337; Re Wollard [1953] SASR 173; Re De Feu [1964] VR 420.

39.

Re Parr (1930) 30 SR (NSW) 10; Re Gregory [1971] 1 All ER 497.

40.

Re Kennedy [1920] VLR 513.

41.

Toner v Lister [1919] GLR 498; Re Dingle (1921) 21 (NSW) 723 at 726; Re Knight [1939] GLR 673 at 677; Re Scott [1950] VLR 102 at 107; Re Bradbury [1947] St R Qd 171; Re Johnstone [1962] Tas SR 356 at 362.

42.

Re Hardgraves (No 2) [1956] St R Qd 153.

43.

McGruth v Queensland Trustees Ltd [1919] St R Qd 169; Re Gilbert (1946) 46 SR (NSW) 318; Re Hardgraves (No 2) [1956] St R Qd 153.

44.

Murphy v Stewart [2004] NSWSC 569.

45.

See also Churton v Christian (1988) 13 NSWLR 241; 12 Fam LR 386.

46.

Re De Feu [1964] VR 420; Re Lack [1981] Qd R 112; Re Prakash [1981] Qd R 189; Dobell v Van Damme [1982] VR 425; Krause v Sinclair [1983] VR 73; Sarich v Erceg [1984] WAR 11.

47.

For the circumstances taken into account, see text 4.16 and 4.17.

48.

See text 4.14.

49.

See text 4.15.

50.

For circumstances taken into account, see text 4.19.

51.

Butterworths Family Law Bulletin.

52.

Re Sinnott [1948] VLR 279 at 281.

53.

Re Bodman [1972] Qd R 281 at 284.

54.

See Scales’ case (1962) 107 CLR 9 at 19.

55.

As to items (b) and (c), see Hughes v NTE&A (1979) 143 CLR 134 at 147 per Gibbs J; 53 ALJR 249 at 253.

56.

Re Sinnott [1948] VLR 279 at 280, cited with approval in Scales’ case (1962) 107 CLR 9 at 19; Re Buckland (No 2) [1967] VR 3 at 5; Hughes v NTE&A (1979) 143 CLR 134 at 147; 53 ALJR 249 at 253.

57.

Hunter v Hunter (1987) 8 NSWLR 573.

58.

Hunter v Hunter (1987) 8 NSWLR 573 at 580; Hawkins v Prestage [1989] 1 WAR 37 at 45.

59.

Anderson v Teboneras [1990] VR 527.

60.

Mudford v Mudford [1947] NZLR 837 at 840; McCosker v McCosker (1957) 97 CLR 566; Re Rowe [1964] QWN 46; Re Hokin [1959] VR 711; Re Cooper [1970] 2 NSWR 182; Kleinig v Neal (1980) 8 Fam LR 392; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Crook v Elder’s Trustee (1986) 132 LSJS 121; Anderson v Teboneras [1990] VR 527. See also Goodman v Windeyer (1980) 54 ALJR 470 at 473; Hawkins v Prestage [1989] 1 WAR 37 at 45. It is equally relevant to a claim by an adult daughter: see Re McCreedy [1938] St R Qd 293 at 296; Re Campbell [1951] GLR 287.

61.

Re Rowe [1964] QWN 46 (financial support of mother after the testator deserted the family). See also Goodman v Windeyer (1980) 54 ALJR 470 at 473.

62.

Munt v Findlay (1905) 8 GLR 197; Re Bleasel (1906) 25 NZLR 974; 8 GLR 743; Glascow v Glascow (1911) 13 GLR 647; Re Fletcher [1921] NZLR 649; [1921] GLR 429; Re McNamara (1938) 55 WN (NSW) 180; Mudford v Mudford [1947] NZLR 837; Re Anderson (1975) 11 SASR 276.

63.

Lean v Tipping (No 2) [1917] GLR 355.

64.

Sinclair v Sinclair [1917] NZLR 144; Lean v Tipping (No 2) [1917] GLR 355.

65.

Lean v Tipping (No 2) [1917] GLR 355; Re Jolliffe [1929] St R Qd 189; Re Hokin [1959] VR 711; Hughes v NTE&A (1979) 143 CLR 134; 53 ALJR 249; Re Lawson [1987] 1 NZLR 486.

66.

Re Adams [1967] VR 881 at 886–7; Ormsby v Ormsby [1991] ACL Rep 395 NSW 13.

67.

Re Christie [1979] Ch 168.

68.

Hughes v NTE&A (1979) 143 CLR 134 at 148; 53 ALJR 249 at 254.

69.

NSW 1982 Act s 6(1)(d)(ii).

70.

As to which, see text 2.58.

71.

As to which, see text 6.7.

72.

Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 504.

73.

Anderson v Teboneras [1990] VR 527 at 535; Mason v Permanent Trustee Co (1997) ACL Rep 395 NSW 8.

74.

As to which, see text 2.44.

75.

Perkins v Perkins (1999) ACL Rep 395 NSW 29.

[page 517]

Appendix III Family Provision Legislation Australian Capital Territory Family Provision Act 1969 Name of Act 1 This Act is the Family Provision Act 1969.

Dictionary 2 The dictionary at the end of this Act is part of this Act. Note 1

The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere. For example, the signpost definition ‘intestate—see the Administration and Probate Act 1929, section 44(1).’ means that the term ‘intestate’ is defined in that section and the definition applies to this Act.

Note 2

A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156(1)).

Notes 3 A note included in this Act is explanatory and is not part of this Act. Note

See the Legislation Act s 127(1), (4) and (5) for the legal status of notes.

Sealing of probate etc granted outside ACT 4 (1) This section applies if — (a) probate of a will or letters of administration of an estate is granted outside the ACT; and [page 518] (b) the probate or administration is sealed with the seal of the Supreme Court under the Administration and Probate Act 1929, section 80. (2) The probate or administration is taken, for this Act, to be probate of the will, or letters of administration of the estate, granted in the ACT on the date when it was sealed. ss 5–6 [Omitted]

Eligibility 7 (1) Subject to this section, each of the following persons is entitled to make application to the Supreme Court for provision out of the estate of a deceased person: (a) a partner of the deceased person; (b) a person (other than a partner of the deceased person) who was in a domestic relationship with the deceased person for 2 or more years continuously at any time;

(c) a child of the deceased person; (d) a stepchild of the deceased person; (e) a grandchild of the deceased person; (f)

a parent of the deceased person.

(2) A stepchild of a deceased person is not entitled to make an application to the Supreme Court for provision out of the estate of the deceased person unless the stepchild was maintained by the deceased person immediately before his or her death. (3) A grandchild of a deceased person is not entitled to make an application to the Supreme Court for provision out of the estate of the deceased person unless — (a) the parent of the grandchild who was a child of the deceased person died before the deceased person died; or (b) 1 or both of the parents of the grandchild was alive at the date of the death of the deceased person and the grandchild was not maintained by that parent or by either of those parents immediately before the death of the deceased person. (4) A parent of a deceased person is not entitled to make an application to the Supreme Court for provision out of the estate of the deceased person unless — (a) the parent was maintained by the deceased person immediately before his or her death; or (b) the deceased person was not survived by any partner or any of the children of the deceased person. (5)–(6) [Omitted] (7) For this section, a person shall not be regarded as having been

maintained by the deceased person immediately before his or her death unless — [page 519] (a) there was in force at that time an order of a court requiring the deceased person to pay maintenance to or for the benefit of the other person; or (b) the deceased person was, at that time, whether under a written agreement or otherwise, maintaining that other person or making a contribution to the maintenance of that other person, being a contribution that, in all of the circumstances, can be regarded as other than a nominal contribution; or (c) a court would, if the deceased person were still living, have power to make an order requiring the deceased person to pay maintenance to or for the benefit of the other person. (8) For this section, a child of the deceased person born alive after the death of that person shall be regarded as having been born before the death of the deceased person. (9) In this section: domestic relationship — see the Domestic Relationships Act 1994, section 3. partner, of a deceased person, means someone who — (a) was the domestic partner of the person at any time; and (b) either — (i)

was the person’s spouse, civil union partner or civil

partner at any time; or (ii) was the person’s domestic partner continuously for 2 or more years at any time; or (iii) is the parent of a child of the person. Note

For the meaning of domestic partner, see Legislation Act, s 169.

Family provision orders 8 (1) On application by a person entitled, under section 7, to apply for provision out of the estate of a deceased person, the Supreme Court may order that the provision as that court thinks fit be made for the applicant out of the estate. (2) The Supreme Court shall only make an order under subsection (1) if satisfied, in consideration of the criteria set out in subsection (3), that as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available — (a) under the will of the deceased; or (b) if the deceased died intestate — under the law applicable to that intestacy; or (c) under that will and that law combined. [page 520] (3) The criteria for the Supreme Court’s decision under subsection (2) in relation to the deceased and the applicant are as follows: (a) the character and conduct of the applicant;

the nature and duration of the relationship between the (b) applicant and the deceased; (c) any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons; (d) any contributions (including any in the capacity of homemaker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person; (e) the income, property and financial resources of the applicant and the deceased; (f)

the physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment;

(g) the financial needs and obligations of the applicant and the deceased (during the life of the deceased); (h) the responsibilities of either the applicant or the deceased (during his or her life) to support any other person; (i)

the terms of any order made under the Domestic Relationships Act 1994, section 15 with respect to the property of the applicant or the deceased;

(j)

any payments made to either the applicant or the deceased by the other, under an order of the court or otherwise, in respect of the maintenance of the other person or any child of the other person;

(k) any other matter the court considers relevant. (4) The Supreme Court may regard an application for provision

out of the estate of a deceased person by a single person as an application made on behalf of all the persons entitled to make applications for provision out of the estate of the deceased person.

Time for making application under s 8(1) 9 (1) Subject to subsection (2), an application for an order under section 8 shall be made within a period of 6 months after the date when administration in respect of the estate of the deceased person has been granted. (2) The Supreme Court may, after hearing such of the persons affected as the court thinks necessary, extend the time within which an application may be made under section 8. (3) An extension of time under this section may be granted — [page 521] (a) on any conditions that the Supreme Court thinks fit; and (b) whether or not the time for making an application has ended. (4) An application for the extension, under this section, of the time within which an application for provision out of the estate of the deceased person may be made under section 8 shall not be made after the estate of a deceased person has been lawfully and fully distributed. (5) An application for provision out of the estate of a deceased person shall, for this section, be deemed to have been made on the day when the notice of motion or other document instituting the application is filed.

Variation, suspension and discharge of orders

9A (1) In this section: previous order means an order made under this Act that has not been discharged. (2) Subject to this Act, on application made by or on behalf of the administrator of the estate of a deceased person or a person beneficially entitled to, or having an interest in, a part of the estate of a deceased person, the Supreme Court may, in its discretion and having regard to all the circumstances of the case, by order — (a) vary a previous order relating to that estate by reducing the amount of the provision made by that previous order; or (b) suspend a previous order relating to that estate for a specified period; or (c) discharge a previous order relating to that estate. (3) Subject to this Act, if by a previous order the Supreme Court has directed that provision by way of periodical payments or the benefit of the investment of a lump sum be made for a person out of the estate of a deceased person, on application made by or on behalf of the person, if the court is satisfied that the provision is not adequate for the proper maintenance, education or advancement in life of the person, the court may, in its discretion and having regard to all the circumstances of the case, by order, vary the previous order by increasing the amount of the provision. (4) The applicant for an order under subsection (2) shall cause notice of the application to be served on the person in whose favour the previous order was made. (5) If the Supreme Court makes an order under subsection (2), the court may make any further orders that it thinks fit for the

purpose of giving effect to the order under subsection (2) and any other orders that it considers just.

Service of application for order under s 8 or s 9A 10 (1) If an application has been made to the Supreme Court for an order under section 8 or 9A for or in relation to provision out of the [page 522] estate of a deceased person, the applicant shall cause notice of the application to be served on each person who is an administrator of the estate of the deceased person. (2) The Supreme Court may — (a) on its own initiative and either before or during the hearing of an application for an order under section 8 or 9A for or in relation to provision out of the estate of a deceased person; or (b) on an application made by the applicant for such an order or by the administrator of the estate of the deceased person; order that notice of the application be served on the persons that the court thinks fit.

Form of order and burden of provision 11 (1) An order under section 8 or 9A shall specify the amount and nature of the provision (if any) to be made and may specify conditions, restrictions and limitations subject to which the provision is to be made that the Supreme Court thinks fit to impose. (2) Unless the Supreme Court otherwise orders, the burden of

the provision ordered by the court to be made for the benefit of a person shall, subject to subsection (3), be borne between the persons beneficially entitled to the estate of the deceased person (other than the person or persons in whose favour an order or orders under this Act is or are made), in proportion to the values of their respective interests in the estate. (3) If persons are successively entitled to estates or interests in any property that is settled by the will of the deceased person, those estates and interests shall not, unless the Supreme Court otherwise orders, be valued separately but the proportion of the provision required by subsection (2) to be borne by those persons out of those estates and interests shall be raised or charged against the corpus of that property.

Class fund 12 (1) Without limiting the powers of the Supreme Court under this Act, the court may order that an amount specified in the order be set aside out of the estate of the deceased person and held on trust as a class fund for the benefit of 2 or more persons specified in the order in whose favour orders for provision out of the estate of the deceased person have been made. (2) If an amount is ordered to be held in trust as a class fund, the trustee of the fund shall invest so much of the amount as is not applied in accordance with this subsection and may, subject to any directions or conditions that the Supreme Court gives or imposes, but otherwise as the trustee thinks fit, apply the whole or any part of the income and capital of the fund for or towards the maintenance, education or advancement in life of the persons for whose benefit the class fund is held, or any 1 or more of them to the exclusion of the other or others [page 523]

of them in the shares and in the way that the trustee, from time to time, determines. (3) If 1 or more of the persons for whose benefit money is held in trust as a class fund dies, a reference in subsection (2) to the persons for whose benefit money is held in trust as a class fund is, after the death of that person, a reference to the survivor or survivors of those persons. (4) If an amount is set aside as a class fund, the administrator of the estate of the deceased person shall, unless the Supreme Court otherwise orders, be the trustee of the class fund.

Property subject to power of appointment 13 (1) If — (a) application is made under section 8 or 9A for an order that provision be made out of the estate of a deceased person; and (b) the deceased person has, by will, exercised a general or a special power of appointment in respect of property, being a power under which the deceased person was, immediately before death, entitled to appoint the property to himself or herself; and (c) the Supreme Court is satisfied that — (i)

adequate provision for the person who has made the application cannot justly be made out of other property forming part of the estate of the deceased person; or

(ii) because of the existence of special circumstances, an order should be made that provision be made out of, or charged on, the property in respect of which the deceased person has exercised the general or special

power of appointment; the court may order that provision be made out of, or charged on, the property in respect of which the deceased person has exercised the general or special power of appointment. (2) If — (a) a testator has power to appoint, by will, any real property in the way that he or she thinks fit; and (b) by will, the testator has made a general devise of his or her real property or of his or her real property at a particular place, in the occupation of a particular person or otherwise described in a general way without expressly exercising the power of appointment; and (c) under the Wills Act 1968, section 26(2), that general devise is to be construed as including the real property over which the deceased person had that power of appointment; the other property forming part of the estate of the deceased person referred to in subsection (1)(c)(i) shall be deemed to include the [page 524] real property over which the deceased person had that power of appointment. (3) If — (a) a testator has power to appoint, by will, any personal property in the way that he or she thinks fit; (b) by will, the testator has made a general bequest of

personal property or of any class of personal property described in a general way without expressly exercising the power of appointment; and (c) under the Wills Act 1968, subsection 26(3) that general bequest is to be construed as including the personal property over which the deceased person had that power of appointment; the other property forming part of the estate of the deceased person referred to in subsection (1)(c)(i) shall be deemed to include the personal property over which the deceased person had that power of appointment.

Presumption of death 14 If the Supreme Court makes an order under section 8 or 9A that provision be made out of the estate of a person of which the court has granted administration on being satisfied by evidence supporting the presumption that the person may be presumed to be dead, the court may direct that the provision shall not be made unless the person in whose favour the order is made gives an undertaking or security that he or she will, if the grant of administration is revoked on the ground that the person was living at the time of the grant — (a) if he or she has received property other than money under the order — restore the property or, at his or her option, pay an amount equal to the value of the property at the time he or she receives the property to the person whose death was presumed or, if that person has subsequently died, to the administrator of the estate of that person; or (b) if he or she has received money under the order — pay an amount equal to the amount of the money received by

him or her under the order to the person whose death was presumed or, if that person has subsequently died, to the administrator of the estate of that person.

Exoneration of part of estate from provision 15 (1) The Supreme Court may, when making, or at any time after having made, an order under section 8 or 9A, order a person who is entitled to a share in the estate of the deceased person as a legatee, devisee or beneficiary to pay a lump sum or periodical payments, or a lump sum and periodical payments, to represent, or in commutation of, a proportion of the provision ordered to be made for the person [page 525] in whose favour the order is made that falls on the legatee, devisee or beneficiary, and may exonerate the property or a specified part of the property to which the legatee, devisee or beneficiary is entitled from further liability in respect of that provision. (2) If the Supreme Court makes an order under subsection (1), the court may direct — (a) how a lump sum or periodical payment is to be secured; and (b) the person to whom such a lump sum or periodical payment is to be made; and (c) how (if at all) the lump sum or periodical payment is to be invested for the benefit of the person in whose favour the order under section 8 or 9A has been made.

Operation of order for provision out of estate of deceased person

16 (1) Subject to subsection (2), an order under section 8 operates as if it were a codicil to the will of the deceased person executed by the deceased person immediately before death. (2) An order under section 8 in relation to property of a deceased person who died intestate operates as a modification of the Administration and Probate Act 1929, part 3A in its application to that property. [There is no section 17.]

Certified copy of order 18 The Supreme Court shall, if it makes an order under section 8, 9A or 15 in relation to the estate of a deceased person, direct that a certified copy of the order be endorsed on, or annexed to, the probate of the will or letters of administration with the will annexed or letters of administration of the estate of the deceased person, as the case may be, and, for that purpose, may require the production of the probate or letters of administration.

Permission of court necessary to validity of mortgage, charge or assignment of an interest 19 A mortgage, charge or assignment of any kind whatsoever, of or over the provision made, or to be made, by an order under this Act, is of no force or effect unless that mortgage, charge or assignment is made with the permission of the Supreme Court.

Property available for provision 20 (1) Subject to subsection (2), notwithstanding any distribution of property forming part of the estate of a deceased person made by the administrator of the estate, the Supreme Court may, in an order under section 8 or 9A in relation to that estate, direct that provision be made for a person out of that property.

[page 526] (2) In an order under section 8 or 9A, the Supreme Court shall not direct that provision be made for a person out of any property that has been the subject of a distribution referred to in subsection (1) if — (a) the distribution was properly made for the purpose of providing for the proper maintenance, education or advancement in life of a person who was totally or partially dependent on the deceased person immediately before the death of the deceased person; or (b) the distribution was made — (i)

more than 6 months after the date administration of the estate was granted; and

when

(ii) before the administrator had notice of the application for the order or, if an application was made under section 9 for an extension of time within which an application for an order under section 8 may be made, the application under section 9; and the property that was so distributed has vested in possession of any person.

Protection of administrator 21 An action does not lie against the administrator of the estate of a deceased person because of his or her having distributed the whole or any part of the estate of the deceased person if the distribution was a distribution referred to in section 20(2) or if — (a) the distribution was made before the administrator had notice of an application for an order under this Act or notice of an application to extend the time within which

an application for an order under this Act may be made under this Act; and (b) before making the distribution, the administrator had given notices in accordance with the Administration and Probate Act 1929, section 64 and the time specified in the notice or in the last of the notices for sending in claims had expired.

Relevance of testator’s reasons 22 (1) The Supreme Court shall, in determining an application for an order under section 8 or 9A, have regard to the testator’s reasons, so far as they are ascertainable, for making the dispositions made by will or for not making provision or further provision, as the case may be, for a person who is entitled to make an application under this Act. (2) The Supreme Court may receive in evidence a statement signed by the testator and purporting to bear the date when it was signed and to set out reasons for making or not making provision or further provision by the will of the testator for a person as evidence of those reasons. [page 527] (3) If a statement of a kind referred to in subsection (2) is received in evidence, the Supreme Court shall, in determining what weight (if any) ought to be attached to the statement, have regard to all the circumstances from which any inference may reasonably be drawn about the accuracy of the matters referred to in the statement.

Dictionary

(see s 2) Note 1

The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2

For example, the Legislation Act, dict, pt 1, defines the following terms:

ACT civil partner civil union partner person (see s 160) public trustee and guardian Supreme Court. administration means probate, granted in the ACT, of the will of a deceased person or letters of administration, granted in the ACT, of the estate of a deceased person, whether with or without a will annexed, and whether granted for general, special or limited purposes, and includes an order to collect and administer the estate of a deceased person granted to the public trustee and guardian. administrator, in relation to the estate of a deceased person, means a person to whom administration has been granted in respect of the deceased person. deceased person includes a person in respect of whose estate there has been made a grant of administration expressed to be made on presumption of the death of the person. intestate — see the Administration and Probate Act 1929, section 44(1). will includes a codicil.

[page 528]

New South Wales Succession Act 2006

CHAPTER 3 FAMILY PROVISION PART 3.1 APPLICATION OF CHAPTER Interpretation 55 (1) For the purposes of this Chapter, administration is granted in respect of the estate of a deceased person if: (a) probate of the will of the deceased person is granted in New South Wales or granted outside New South Wales but sealed in accordance with section 107(1) of the Probate and Administration Act 1898, or (b) letters of administration of the estate of the deceased person are granted in New South Wales or granted outside New South Wales but sealed in accordance with section 107(1) of the Probate and Administration Act 1898, whether the letters were granted with or without a will annexed and whether for general, special or limited purposes, or (c) an order is made under section 24 or 25 of the NSW Trustee and Guardian Act 2009 in respect of the estate of the deceased person, or

(d)

an election is made by the NSW Trustee and Guardian under Division 1 of Part 3.2 of the NSW Trustee and Guardian Act 2009 in respect of the estate of the deceased person, or

(e) an election is made by a trustee company under section 15A or 15AA of the Trustee Companies Act 1964 in respect of the estate of the deceased person. (2) For the purposes of this Chapter, the legal representative of the estate is the person to whom administration is granted. (3) A reference in this Chapter to a person entitled to exercise a power means a person entitled to exercise a power, whether or not the power: (a) is absolute or conditional, or (b) arises under a trust or in some other manner, or (c) is to be exercised solely by the person or by the person together with one or more other persons (whether jointly or severally). (4) A reference in this Chapter to property held by a person includes property in relation to which the person is entitled to exercise a power of appointment or disposition in favour of himself or herself. [page 529]

Chapter to bind Crown (cf FPA 5) 56 This Chapter binds the Crown in right of New South Wales

and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.

PART 3.2 FAMILY PROVISION ORDERS Division 1 Applications for family provision orders Eligible persons (cf FPA 6(1), definition of ‘eligible person’) 57 (1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person: (a) a person who was the wife or husband of the deceased person at the time of the deceased person’s death, (b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death, (c) a child of the deceased person, (d) a former wife or husband of the deceased person, (e) a person: (i)

who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) 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,

(f)

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

Note. Section 60 sets out the matters that the Court may consider when determining whether to make a family provision order, and the nature of any such order. An application may be made by a tutor (within the meaning of the Civil Procedure Act 2005) for an eligible person who is under legal incapacity. Note. ‘De facto relationship’ is defined in section 21C of the Interpretation Act 1987. (2) In this section, a reference to a child of a deceased person includes, if the deceased person was in a de facto relationship, or a domestic relationship within the meaning of the Property (Relationships) Act 1984, at the time of death, a reference to the following: (a) a child born as a result of sexual relations between the parties to the relationship, (b) a child adopted by both parties, [page 530] (c) in the case of a de facto relationship between a man and a woman, a child of the woman of whom the man is the father or of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father (except where the presumption is rebutted), (d) in the case of a de facto relationship between 2 women, a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996,

(e) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998).

When an application may be made (cf FPA 16(1)(b) and 17) 58 (1) An application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted. Note. Administration may be granted for the purposes of an application for a family provision order (see section 91). (2) An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown. (3) An application is taken to be made on the day it is filed in the Court’s registry.

Division 2 Determination of applications When family provision order may be made (cf FPA 7–9) 59 (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason

only of paragraph (d), (e) or (f) of the definition of eligible person in section 57—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. [page 531] (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. Note. Property that may be the subject of a family provision order is set out in Division 3. This Part applies to property, including property that is designated as notional estate (see section 73). Part 3.3 sets out property that may be designated as part of the notional estate of a deceased person for the purpose of making a family provision order. (3) The Court may make a family provision order in favour of an eligible person in whose favour a family provision order has previously been made in relation to the same estate only if: (a) the Court is satisfied that there has been a substantial

detrimental change in the eligible person’s circumstances since a family provision order was last made in favour of the person, or (b) at the time that a family provision order was last made in favour of the eligible person: (i)

the evidence about the nature and extent of the deceased person’s estate (including any property that was, or could have been, designated as notional estate of the deceased person) did not reveal the existence of certain property (the undisclosed property), and

(ii) the Court would have considered the deceased person’s estate (including any property that was, or could have been, designated as notional estate of the deceased person) to be substantially greater in value if the evidence had revealed the existence of the undisclosed property, and (iii) the Court would not have made the previous family provision order if the evidence had revealed the existence of the undisclosed property. (4) The Court may make a family provision order in favour of an eligible person whose application for a family provision order in relation to the same estate was previously refused only if, at the time of refusal, there existed all the circumstances regarding undisclosed property described in subsection (3)(b).

Matters to be considered by Court (cf FPA 7–9) 60 (1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought

to be made (the applicant) is an eligible person, and [page 532] (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate, (c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate, (e) if the applicant is cohabiting with another person — the financial circumstances of the other person, (f)

any physical, intellectual or mental disability of the applicant, any other person in respect of whom an

application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i)

any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j)

any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, [page 533]

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l)

whether any other person is liable to support the applicant,

(m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal customary law,

or

Torres

Strait

Islander

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

Other possible applicants (cf FPA 20) 61 (1) In determining an application for a family provision order, the Court may disregard the interests of any other person by or in respect of whom an application for a family provision order may be made (other than a beneficiary of the deceased person’s estate) but who has not made an application. (2) However, the Court may disregard any such interests only if: (a) notice of the application, and of the Court’s power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or (b) the Court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.

Interim family provision orders and orders restraining distribution of the estate (cf FPA 9(5) and (6)) 62 (1) The Court may make an interim family provision order

before it has fully considered an application for a family provision order if it is 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. (2) After making an interim family provision order, the Court must proceed to finally determine the application for a family provision order by confirming, revoking or varying the interim order. [page 534] (3) The Court may make an order restraining the final or partial distribution of an estate (other than a distribution under section 94(1) of this Act or section 92A of the Probate and Administration Act 1898) pending its determination of an application for a family provision order.

Division 3 Property that may be used for family provision orders Property that may be used for family provision orders (cf FPA 6(1), definition of ‘estate’, 6(4) and (5)) 63 (1) A family provision order may be made in relation to the estate of a deceased person. (2) If the deceased person died leaving a will, the estate of the deceased person includes property that would, on a grant of probate of the will, vest in the executor of the will, or would on a grant of administration with the will annexed, vest in the legal representative appointed under that grant. (3) A family provision order may not be made in relation to

property of the estate that has been distributed by the legal representative of the estate in compliance with the requirements of section 93, except as provided by subsection (5). (4) Where property of the estate of a deceased person is held by the legal representative of that estate as trustee for a person or for a charitable or other purpose, the property is to be treated, for the purposes of this Chapter, as not having been distributed unless it is vested in interest in that person or for that purpose. (5) A family provision order may be made in relation to property that is not part of the estate of a deceased person, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3.

Orders may affect property in or outside jurisdiction (cf FPA 11(1)(b)) 64 A family provision order may be made in respect of property situated in or outside New South Wales when, or at any time after, the order is made, whether or not the deceased person was, at the time of death, domiciled in New South Wales.

Division 4 General provisions relating to family provision orders Nature of orders (cf FPA 11(1)(a) and (d)) 65 (1) A family provision order must specify: (a) the person or persons for whom provision is to be made, and [page 535]

(b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the Court. (2) A family provision order may require the provision to be made in one or more of the following ways: (a) by payment of a lump sum of money, (b) by periodic payments of money, (c) by application of specified existing or future property, (d) by way of an absolute interest, or a limited interest only, in property, (e) by way of property set aside as a class fund for the benefit of 2 or more persons, (f)

in any other manner the Court thinks fit.

(3) If provision is to be made by payment of an amount of money, the family provision order may specify whether interest is payable on the whole or any part of the amount payable for the period, and, if so, the period during which interest is payable and the rate of the interest.

Consequential and ancillary orders (cf FPA 15(1), 34) 66 (1) The Court may, in addition to, or as part of, a family provision order, make orders for or with respect to all or any of the following matters for the purpose of giving effect to the family provision order:

the transfer of property of the estate directly to the (a) eligible person in whose favour the order is made, or to any other person as trustee for that person, (b) where property is to be held on trust, the purpose of the trust and the way in which it is to be constituted, (c) the appointment of a trustee of property of the estate, (d) the powers and duties of a trustee of property of the estate, including any trustee constituted or appointed under this section, (e) the vesting in any person of property of the estate, (f)

the exercise of a right or power to obtain property for the estate,

(g) the sale of or dealing with property of the estate, (h) the disposal of the proceeds of any sale or other realising of property of the estate, (i)

the securing, either wholly or partially, of the due performance of an order under this Part, [page 536]

(j)

the management of the property of the estate,

(k) the execution of any necessary conveyance, document or instrument, the production of documents of title or the doing of such other things as the Court thinks necessary in relation to the performance of the family provision order, (l)

any other matter the Court thinks necessary.

(2) The Court may make such additional orders as it considers necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order. (3) The execution of an instrument relating to property in the notional estate of a deceased person pursuant to an order under this section is not liable to duty under the Duties Act 1997.

Undertakings to restore property (cf FPA 18) 67 (1) The Court may make a family provision order subject to a condition that the eligible person in whose favour the order is made is to enter into an undertaking, or give security, that, if the order is revoked because the deceased person was not deceased when the order was made, the person will restore any property received under the order, or otherwise make restitution, in accordance with any order of the Court made on the revocation. (2) In this section: deceased person means the person (whether or not deceased) from whose estate a family provision order is made.

Payment for exoneration from liability for orders 68 (1) The Court may, as part of a family provision order, or at any time, on the application of a beneficiary of the estate of a deceased person, by order: (a) fix a periodic payment or lump sum payable by a beneficiary of an estate affected by a family provision order to represent the proportion of the property in the estate affected by the family provision order that is borne by the beneficiary’s portion of the estate, and (b) exonerate the beneficiary’s portion of the estate from any

further liability under the family provision order, on condition that payment is made as directed by the Court. (2) Without limiting subsection (1), in making any order under this section, the Court may do any of the following: (a) specify the person to whom the payment or lump sum is to be paid, (b) specify how any periodic payment is to be secured, [page 537] (c) specify how any lump sum is to be invested for the benefit of any proposed beneficiary. Note. Section 92 enables the Court to replace property in the estate or notional estate of a deceased person that has been, or is proposed to be, affected by a family provision order with property offered in substitution for the affected property.

Effect of order vesting property in estate (cf FPA 15 (2)) 69 The provisions of sections 78 (except subsection (1)) and 79 of the Trustee Act 1925 apply to and in relation to an order under section 66 for the vesting of property in a person in the same way as they apply to and in relation to a vesting order referred to in those provisions and, in the case of section 78(2) of that Act, as if the provisions of section 66 and the other provisions of this Act relating to the making of orders under this Act were contained in Part 3 of that Act.

Variation and revocation of family provision orders (cf FPA 19(1)–(3) and 20(4))

70 (1) A family provision order may be varied or revoked by the Court only in accordance with this Chapter. (2) The Court may, by order, vary or revoke a family provision order so as to allow provision to be made in favour of another eligible person wholly or partly from all or any property affected by the order. (3) The Court must not vary or revoke a family provision order so as to allow provision to be made in favour of another eligible person unless that person shows sufficient cause for not having applied for a family provision order before the order sought to be varied or revoked was made. (4) A family provision order is revoked if the grant of administration in respect of the estate of the deceased person is revoked or rescinded, unless the Court otherwise provides when revoking or rescinding the grant. Note. The Court may also vary a family provision order under sections 62 and 92.

Variation and revocation of other orders (cf FPA 19(4)) 71 If a family provision order is varied or revoked, the Court may: (a) vary or revoke any other orders made by it as a consequence of, or in relation to, the order to such extent as may be necessary as a result of the variation or revocation, and (b) make such additional orders as may be so necessary. [page 538]

Effect of family provision order (cf FPA 14(1)) 72 (1) A family provision order takes effect, unless the Court otherwise orders, as if the provision was made: (a) in a codicil to the will of the deceased person, if the deceased person made a will, or (b) in a will of the deceased person, if the deceased person died intestate. (2) Without limiting subsection (1), the Court may at the time of distribution of an estate that is insufficient to give effect to a family provision order make such orders concerning the abatement or adjustment of distributions from the estate as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected.

Application 73 (1) This Part applies to interim family provision orders in the same way as it applies to family provision orders. (2) This Part (other than section 63) applies to property designated as part of the notional estate of a deceased person in the same way as it applies to property that is part of the estate of a deceased person.

PART 3.3 NOTIONAL ESTATE ORDERS Note. This Part applies where, as a result of certain property transactions, property is not included in the estate of a deceased person or where property has been distributed from the estate of a

deceased person. This Part enables the Court in limited circumstances to make an order designating property that is not included in the estate, or has been distributed from the estate, as ‘notional estate’ of the deceased person for the purpose of making a family provision order under Part 3.2 in respect of the estate of the deceased person (or for the purpose of ordering that costs in the proceedings be paid from the notional estate). Property may be designated as notional estate if it is property held by, or on trust for, a person by whom property became held (whether or not as trustee), or the object of a trust for which property became held on trust: (a) as a result of a distribution from the estate of a deceased person (see section 79), whether or not the property was the subject of the distribution, or (b) as a result of a relevant property transaction, whether or not the property was the subject of the transaction (see section 80), or (c) as a result of a relevant property transaction entered into by a person by whom property became held, or for whom [page 539] property became held on trust, as a result of a relevant property transaction or a distribution from the estate of a deceased person (see section 81), whether or not the property was the subject of the relevant property transaction. Property may also be designated as notional estate if it is property:

(a) held by the legal representative of the estate of a person by whom property became held as a result of a relevant property transaction or distribution referred to in paragraphs (a)–(c) above and who has since died (known as the deceased transferee), or (b) held by, or on trust for, a person by whom property became held, or for the object of a trust for which property became held on trust, as a result of a distribution from the estate of a deceased transferee, whether or not the property was the subject of the relevant property transaction or the distribution from the estate of the deceased person or the deceased transferee (see section 82). Section 92 enables the Court to replace property in the estate or notional estate of a deceased person that has been, or is proposed to be, affected by a family provision order with property offered in substitution for the affected property.

Division 1 Relevant property transactions Definition 74 In this Part: relevant property transaction means a transaction or circumstance affecting property and described in section 75 or 76.

Transactions that are relevant property transactions (cf FPA 22(1), (3) and (7)) 75 (1) A person enters into a relevant property transaction if the person does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being:

(a) held by another person (whether or not as trustee), or (b) subject to a trust, and full valuable consideration is not given to the person for doing or not doing the act. (2) The fact that a person has entered into a relevant property transaction affecting property does not prevent the person from being taken to have entered into another relevant property transaction if the person subsequently does, or does not do, an act affecting the same property the subject of the first transaction. (3) The making of a will by a person, or the omission of a person to make a will, does not constitute an act or omission for the purposes of subsection (1), except in so far as it constitutes a failure to exercise a [page 540] power of appointment or disposition in relation to property that is not in the person’s estate.

Examples of relevant property transactions (cf FPA 22(4)) 76 (1) The circumstances set out in subsection (2), subject to full valuable consideration not being given, constitute the basis of a relevant property transaction for the purposes of section 75. (2) The circumstances are as follows: (a) if a person is entitled to exercise a power to appoint, or dispose of, property that is not in the person’s estate and does not exercise that power before ceasing (because of death or the occurrence of any other event) to be entitled

to do so, with the result that the property becomes held by another person (whether or not as trustee) or subject to a trust or another person (immediately or at some later time) becomes, or continues to be, entitled to exercise the power, (b) if a person holds an interest in property as a joint tenant and the person does not sever that interest before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that, on the person’s death, the property becomes, by operation of the right of survivorship, held by another person (whether or not as trustee) or subject to a trust, (c) if a person holds an interest in property in which another interest is held by another person (whether or not as trustee) or is subject to a trust, and the person is entitled to exercise a power to extinguish the other interest in the property and the power is not exercised before the person ceases (because of death or the occurrence of any other event) to be so entitled with the result that the other interest in the property continues to be so held or subject to the trust, (d) if a person is entitled, in relation to a life assurance policy on the person’s life under which money is payable on the person’s death or if some other event occurs to a person other than the legal representative of the person’s estate, to exercise a power: (i)

to substitute a person or a trust for the person to whom, or trust subject to which, money is payable under the policy, or

(ii) to surrender or otherwise deal with the policy,

and the person does not exercise that power before ceasing (because of death or the occurrence of any other event) to be entitled to do so, (e) if a person who is a member of, or a participant in, a body (corporate or unincorporate), association, scheme, fund or [page 541] plan, dies and property (immediately or at some later time) becomes held by another person (whether or not as trustee) or subject to a trust because of the person’s membership or participation and the person’s death or the occurrence of any other event, (f)

if a person enters into a contract disposing of property out of the person’s estate, whether or not the disposition is to take effect before, on or after the person’s death or under the person’s will or otherwise.

(3) Nothing in this section prevents any other act or omission from constituting the basis of a relevant property transaction for the purposes of section 75. (4) For the purposes of this Chapter, in the circumstances described in subsection (2)(b), a person is not given full or any valuable consideration for not severing an interest in property held as a joint tenant merely because, by not severing that interest, the person retains, until his or her death, the benefit of the right of survivorship in respect of that property.

When relevant property transactions take effect (cf FPA 22(2), (5) and (6)) 77 (1) For the purposes of this Chapter, a relevant property

transaction is taken to have effect when the property concerned becomes held by another person or subject to a trust or as otherwise provided by this section. (2) A relevant property transaction consisting of circumstances described in section 76(2)(a), (c) or (d) is taken to have been entered into immediately before, and to take effect on, the person’s death or the occurrence of the other event resulting in the person no longer being entitled to exercise the relevant power. (3) A relevant property transaction consisting of circumstances described in section 76(2)(b) or (e) is taken to have been entered into immediately before, and to take effect on, the person’s death or the occurrence of the other event referred to in those paragraphs. (4) A relevant property transaction that involves any kind of contract for which valuable consideration, though not full valuable consideration, is given for the person to enter into the transaction is taken to be entered into and take effect when the contract is entered into.

Division 2 When notional estate orders may be made Notional estate order may be made only if family provision order or certain costs orders to be made 78 (1) The Court may make an order designating property as notional estate only: (a) for the purposes of a family provision order to be made under Part 3.2, or [page 542]

(b) for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person. Note. Section 63(5) enables a family provision order to be made in relation to property designated as notional estate of a deceased person. Section 99 enables the Court to order that costs be paid out of the notional estate of a deceased person. (2) The Court must not make an order under subsection (1)(b) for the purposes of an order that the whole or part of an applicant’s costs be paid from the notional estate of the deceased person unless the Court makes or has made a family provision order in favour of the applicant.

Notional estate order may be made where property of estate distributed (cf FPA 24) 79 The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased person’s estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust.

Notional estate order may be made where estate affected by relevant property transaction (cf FPA 23) 80 (1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional

estate of a deceased person if the Court is satisfied that the deceased person entered into a relevant property transaction before his or her death and that the transaction is a transaction to which this section applies. Note. The kinds of transactions that constitute relevant property transactions are set out in sections 75 and 76. (2) This section applies to the following relevant property transactions: (a) a transaction that took effect within 3 years before the date of the death of the deceased person and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order, [page 543] (b) a transaction that took effect within one year before the date of the death of the deceased person and was entered into when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education or advancement in life of any person who is entitled to apply for a family provision order which was substantially greater than any moral obligation of the deceased person to enter into the transaction, (c) a transaction that took effect or is to take effect on or after the deceased person’s death. (3) Property may be designated as notional estate by a notional

estate order under this section if it is property that is held by, or on trust for: (a) a person by whom property became held (whether or not as trustee) as the result of a relevant property transaction, or (b) the object of a trust for which property became held on trust as the result of a relevant property transaction, whether or not the property was the subject of the relevant property transaction.

Notional estate order may be made where estate affected by subsequent relevant property transaction (cf FPA 25) 81 (1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that: (a) it: (i)

has power, under this or any other section of this Chapter, to make a notional estate order designating property held by, or on trust for, a person (the transferee) as notional estate of the deceased person, or

(ii) immediately before the date of the death of a person (the deceased transferee), had power, under this or any other section of this Chapter, to make a notional estate order designating property held by, or on trust for, the deceased transferee as notional estate of the deceased person, and (b) since the relevant property transaction or distribution

that gave rise to the power to make the order was entered into or made, the transferee, or the deceased transferee, entered into a relevant property transaction, and (c) there are special circumstances that warrant the making of the order. [page 544] (2) Property may be designated as notional estate by a notional estate order under this section if it is property that is held by, or on trust for: (a) a person by whom property became held (whether or not as trustee) as the result of the relevant property transaction entered into by the transferee or the deceased transferee, or (b) the object of a trust for which property became held on trust as the result of the relevant property transaction entered into by the transferee or the deceased transferee, whether or not the property was the subject of the relevant property transaction. (3) A notional estate order may be made under this section instead of or in addition to an order under section 79, 80 or 82.

Notional estate order may be made where property of deceased transferee’s estate held by legal representative or distributed 82 (1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that:

(a) immediately before the date of the death of a person (the deceased transferee), it had power, under this or any other section of this Chapter, to make a notional estate order designating property held by, or on trust for, the deceased transferee as notional estate of the deceased person, and (b) the power did not arise because property became held by the deceased transferee as trustee only, and (c) in the case of property referred to in subsection (2)(b), there are special circumstances that warrant the making of the order. (2) The following property may be designated as notional estate by a notional estate order under this section, whether or not it was the property the subject of the relevant property transaction or distribution from which the Court’s power to make such an order arose: (a) if administration has been granted in respect of the estate of the deceased transferee — property that is held by the legal representative of the estate of the deceased transferee in his or her capacity as legal representative of the estate of the deceased transferee, (b) if all or part of the estate of the deceased transferee has been distributed — property that is held by, or on trust for: (i)

a person by whom property became held (whether or not as trustee) as the result of the distribution of the deceased transferee’s estate, or [page 545]

(ii) the object of a trust for which property became held on trust as the result of the distribution of the deceased transferee’s estate. (3) A notional estate order may be made under this section instead of or in addition to an order under section 79, 80 or 81. Note. Administration of the estate of a deceased transferee may be granted for the purposes of being able to designate property as notional estate under this section (see section 91).

Disadvantage and other matters required before order can be made (cf FPA 26) 83 (1) The Court must not, merely because a relevant property transaction has been entered into, make an order under section 80, 81 or 82 unless the Court is satisfied that the relevant property transaction or the holding of property resulting from the relevant property transaction: (a) directly or indirectly disadvantaged the estate of the principal party to the transaction or a person entitled to apply for a family provision order from the estate or, if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death), or (b) involved the exercise by the principal party to the transaction or any other person (whether alone or jointly or severally with any other person) of a right, a discretion or a power of appointment, disposition, nomination or direction that, if not exercised, could have resulted in a benefit to the estate of the principal party to the transaction or a person entitled to apply for a family provision order from the estate or, if the deceased person

was not the principal party to the transaction, the deceased person (whether before, on or after death), or (c) involved the exercise by the principal party to the transaction or any other person (whether alone or jointly or severally with any other person) of a right, a discretion or a power of appointment, disposition, nomination or direction that could, when the relevant property transaction was entered into or at a later time, have been exercised so as to result in a benefit to the estate of the principal party to the transaction or a person entitled to apply for a family provision order from the estate or, if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death), or (d) involved an omission to exercise a right, a discretion or a power of appointment, disposition, nomination or direction that could, when the relevant property transaction was entered into or at a later time, have been exercised by [page 546] the principal party to the transaction or any other person (whether alone or jointly or severally with any other person) so as to result in a benefit to the estate of the principal party to the transaction or a person entitled to apply for a family provision order from the estate or, if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death). (2) In this section: principal party to the transaction, in

relation to a relevant property transaction, means the person who, under section 75 or 76, enters into the relevant property transaction.

Effect of notional estate order (cf FPA 29) 84 A person’s rights are extinguished to the extent that they are affected by a notional estate order.

More than one notional estate order may be made (cf FPA 28(3)) 85 The Court may make one or more notional estate orders in connection with the same proceedings for a family provision order, or any subsequent proceedings relating to the estate of the same deceased person.

Power subject to Division 3 86 The Court’s power to make a notional estate order under this Division is subject to Division 3.

Division 3 Restrictions and protections relating to notional estate orders General matters that must be considered by Court (cf FPA 27(1)) 87 The Court must not make a notional estate order unless it has considered the following: (a) the importance of not interfering with reasonable expectations in relation to property, (b) the substantial justice and merits involved in making or refusing to make the order,

(c) any other matter circumstances.

it

considers

relevant

in

the

Estate must not be sufficient for provision or order as to costs (cf FPA 28(1)) 88 The Court must not make a notional estate order unless it is satisfied that: (a) the deceased person left no estate, or [page 547] (b) the deceased person’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person’s estate because there are other persons entitled to apply for family provision orders or because there are special circumstances.

Determination of property to be subject to notional estate order (cf FPA 27(2), 28(2) and (4)) 89 (1) In determining what property should be designated as notional estate of a deceased person, the Court must have regard to the following: (a) the value and nature of any property: (i)

the subject of a relevant property transaction, or

(ii) the subject of a distribution from the estate of the deceased person or from the estate of a deceased

transferee, or (iii) held by the legal representative of the estate of any deceased transferee in his or her capacity as legal representative of the estate of the deceased transferee, (b) the value and nature of any consideration given in a relevant property transaction, (c) any changes in the value of property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), in the time since the relevant property transaction was entered into, the distribution was made, the property became held by the legal representative of the estate of the deceased transferee or the consideration was given, (d) whether property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), could have been used to obtain income in the time since the relevant property transaction was entered into, the distribution was made, the property became held by the legal representative of the estate of the deceased transferee or the consideration was given, (e) any other matter circumstances.

it

considers

relevant

in

the

(2) The Court must not designate as notional estate property that exceeds that necessary, in the Court’s opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under section 99, to allow costs to be paid as ordered, or both. (3) If, as a result of a relevant property transaction or of a distribution from the estate of a deceased person or from the

estate of a deceased transferee, property becomes held by a person as a trustee only, the [page 548] Court must not designate as notional estate any property held by the person other than the property held by the person as a trustee as a consequence of any such relevant property transaction or distribution.

Restrictions on out of time or additional applications (cf FPA 28(5)) 90 (1) This section applies to proceedings where: (a) an application for a family provision order is made later than 12 months after the date of the death of the deceased person, or (b) an application for a family provision order is made in relation to an estate that has been previously the subject of a family provision order. (2) The Court must not make a notional estate order in the proceedings unless: (a) it is satisfied that: (i)

the property to be designated as notional estate is property that was the subject of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, and

(ii) the person who holds the property holds it as a result of the relevant property transaction or distribution as

trustee only, and (iii) the property is not vested in interest in any beneficiary under the trust, or (b) it is satisfied that there are other special circumstances that justify the making of the notional estate order.

PART 3.4 MISCELLANEOUS Grant of probate or administration to enable application to be dealt with (cf WPA 41A) 91 (1) This section applies if an application is made by a person for a family provision order, or notional estate order, in respect of the estate of a deceased person, or deceased transferee, respectively, in relation to which administration has not been granted. (2) The Court may, if it is satisfied that it is proper to do so, grant administration in respect of the estate of the deceased person or deceased transferee to the applicant for the purposes only of permitting the application concerned to be dealt with, whether or not the deceased person or deceased transferee left property in New South Wales. (3) The granting of administration under the Probate and Administration Act 1898 does not: [page 549] (a) prevent the Court from granting administration under this section, or

(b)

unless the Court otherwise orders, affect any previous grant of administration under this section.

(4) The provisions of the Probate and Administration Act 1898 apply to a grant of administration under this section, and to the legal representative of the estate, in the same way as they apply to a grant of administration under that Act and the legal representative of any estate for which such a grant has been made.

Substitution of property affected by orders or proposed orders (cf FPA 30) 92 (1) If the Court has made, or proposes to make, a family provision order affecting certain property in the estate of a deceased person or a deceased transferee, the Court may, on application by a person who offers other property in substitution (the replacement property): (a) vary the family provision order by substituting the replacement property for the property affected by the order, or (b) make a family provision order in respect of the replacement property instead of the property proposed to be affected by such an order, as appropriate. (2) If the Court has made, or proposes to make, a notional estate order designating certain property as notional estate, the Court may, on application by a person who offers other property in substitution (the replacement property): (a) vary the notional estate order by substituting the replacement property for the property designated as notional estate by the order, or

(b) make a notional estate order designating the replacement property as notional estate instead of the property proposed to be designated as notional estate by such an order, as appropriate. (3) The Court may vary or make an order under this section only if it is satisfied that the replacement property can properly be substituted for the property affected or proposed to be affected by the family provision order, or the property designated or proposed to be designated as notional estate, as appropriate. (4) An order varied or made under this section is taken to be an order in respect of property of the estate or notional estate of the deceased person for the purposes of this Chapter (except section 72 (Effect of family provision order)). [page 550]

Protection of legal representative who distributes after giving notice (cf FPA 35(1)) 93 (1) The legal representative of the estate of a deceased person may distribute the property in the estate if: (a) the property is distributed at least 6 months after the deceased person’s death, and (b) the legal representative has given notice in the form approved under section 17of the Civil Procedure Act 2005 that the legal representative intends to distribute the property in the estate after the expiration of a specified time, and

(c) the time specified in the notice is not less than 30 days after the notice is given, and (d) the time specified in the notice has expired, and (e) at the time of distribution, the legal representative does not have notice of any application or intended application for a family provision order affecting the estate of the deceased person. (2) A legal representative who distributes property of the estate of a deceased person is not liable in respect of that distribution to any person who was an applicant for a family provision order affecting the estate if the legal representative did not have notice at the time of the distribution of the application and if: (a) the distribution was made in accordance with this section, and (b) the distribution was properly made by the legal representative. (3) For the purposes of this section, notice to the legal representative of an application or intention to make any application under this Chapter must be in writing signed in accordance with rules for the signing of documents by a party in proceedings under the Uniform Civil Procedure Rules 2005. Note. On the enactment of this subsection, rules for the signing of documents by a party in proceedings were contained in Rule 4.4 of the Uniform Civil Procedure Rules 2005.

Protection of legal representative in other circumstances 94 (1) A legal representative of the estate of a deceased person who distributes property in the estate for the purpose of providing those things immediately necessary for the maintenance or education of an eligible person who was wholly

or substantially dependent on the deceased person immediately before his or her death is not liable for any such distribution that is properly made. (2) Subsection (1) applies whether or not the legal representative had notice at the time of the distribution of any application or intended application for a family provision order affecting property in the estate. [page 551] (3) No person who may have made or may be entitled to make an application under this Chapter is entitled to bring an action against the legal representative of the estate of a deceased person because the legal representative has distributed any part of the estate if the distribution was properly made by the legal representative after the person (being of full legal capacity) has notified the legal representative in writing that the person either: (a) consents to the distribution, or (b) does not intend to make any application under this Chapter that would affect the proposed distribution. (4) A legal representative of the estate of a deceased person who receives notice of an intended application under this Chapter is not liable in respect of a distribution of any part of the estate if the distribution was made in compliance with section 93(1) by the legal representative not earlier than 12 months after the deceased person’s death. (5) Subsection (4) does not apply if the legal representative receives written notice that the application has been commenced in the Court or is served with a copy of the application before making the distribution.

(6) For the purposes of this section, notice to the legal representative of an application or intention to make any application under this Chapter must be in writing signed in accordance with rules for the signing of documents by a party in proceedings under the Uniform Civil Procedure Rules 2005. Note. On the enactment of this subsection, rules for the signing of documents by a party in proceedings were contained in Rule 4.4 of the Uniform Civil Procedure Rules 2005.

Release of rights under Chapter (cf FPA 31(1)–(6)) 95 (1) A release by a person of the person’s rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval has not been revoked by the Court. (2) Proceedings for the approval by the Court of a release of a person’s rights to apply for a family provision order may be commenced before or after the date of the death of the person whose estate may be the subject of the order. (3) The Court may approve of a release in relation to the whole or any part of the estate or notional estate of a person. (4) 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 [page 552]

(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. (5) In this section: ‘release of rights to apply for a family provision order’ means a release of such rights, if any, as a person has to apply for a family provision order, and includes a reference to: (a) an instrument executed by the person that would be effective as a release of those rights if approved by the Court under this section, and (b) an agreement to execute such an instrument.

Revocation of approval of release (cf FPA 31(7)–(9)) 96 (1) The Court may not revoke an approval of a release given by it under section 95, except as provided by this section. (2) The Court may revoke an approval if it is satisfied: (a) that its approval was obtained by fraud, or (b) that the release was obtained by fraud or undue influence. (3) The Court may also revoke an approval, either wholly or partially in respect of specified property, if it is satisfied that all persons who would be, in the Court’s opinion, sufficiently affected by the revocation consent to the revocation.

Court may determine date of death (cf FPA 6(8)) 97 The Court may, if the date or time of death of a person is uncertain, determine, for the purpose of giving effect to any provision of this Chapter, a date or time of death that the Court thinks is reasonable for the purposes of the provision.

Mediation, orders with consent and costs (cf FPA 33(1)) 98 (1) The object of this section is to encourage the settlement by affected parties of disputes concerning the estate of a deceased person. (2) Unless the Court, for special reasons, otherwise orders, it must refer an application for a family provision order for mediation before it considers the application. (3) The Court may make a family provision order in terms of a written agreement (a consent order) that: [page 553] (a) is produced to the Court by the affected parties in relation to an application after mediation, or on the advice of a legal practitioner, and (b) indicates the parties’ consent to the making of the family provision order in those terms. (4) The regulations may make provision for or with respect to the following: (a) mediations and consent orders under this section,

regulating or prohibiting advertising concerning the (b) provision of legal services in connection with mediations and other proceedings under this Chapter in relation to the estate or notional estate of a deceased person. (5) In this section, legal services has the same meaning as in the Legal Profession Uniform Law (NSW).

Costs (cf FPA 33(1)) 99 (1) The Court may order that the costs of proceedings under this Chapter in relation to the estate or notional estate of a deceased person (including costs in connection with mediation) be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit. Note. Section 78 sets out the circumstances in which the Court may make a notional estate order for the purpose of ordering that costs be paid from the notional estate of a deceased person. (2) The regulations may make provision for or with respect to the costs in connection with proceedings under this Chapter, including the fixing of the maximum costs for legal services that may be paid out of the estate or notional estate of a deceased person. (3) This section and any regulations under this section prevail to the extent of any inconsistency with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014). An assessment under that legislation of any costs in respect of which provision is made by a regulation under this section is to be made so as to give effect to that regulation. (4) In this section, legal services has the same meaning as in the Legal Profession Uniform Law (NSW).

Evidence (cf FPA 32) 100 (1) In this section: statement includes any representation of fact whether or not in writing. (2) In any proceedings under this Chapter, evidence of a statement made by a deceased person is, subject to this section, admissible as evidence of any fact stated in it of which direct oral evidence by the [page 554] deceased person would, if the person were able to give that evidence, be admissible. (3) Subject to subsection (4) and unless the Court otherwise orders, where a statement was made by a deceased person during the person’s lifetime otherwise than in a document, no evidence other than direct testimony (including oral evidence, evidence by affidavit and evidence taken before a commissioner or other person authorised to receive evidence for the purpose of the proceedings) by a person who heard or otherwise perceived the statement being made is admissible for the purpose of proving it. (4) Where a statement was made by a deceased person during the person’s lifetime while giving oral evidence in a legal proceeding (being a civil or criminal proceeding or inquiry in which evidence is or may be given, or an arbitration), the statement maybe approved in any manner authorised by the Court. (5) Where a statement made by a deceased person during the person’s lifetime was contained in a document, the statement may

be proved by the production of the document or, whether or not the document is still in existence, by leave of the Court, by the production of a copy of the document, or of the material part of the document, authenticated in such manner as the Court may approve. (6) Where, under this section, a person proposes to tender, or tenders, evidence of a statement contained in a document, the Court may require that any other document relating to the statement be produced and, in default, may reject the evidence or, if it has been received, exclude it. (7) For the purpose of determining questions of admissibility of a statement under this section, the Court may draw any reasonable inference from the circumstances in which the statement was made or from any other circumstances, including, in the case of a statement contained in a document, the form or content of the document. (8) In estimating the weight, if any, to be attached to evidence of a statement tendered for admission or admitted under this section, regard must be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, including: (a) the recency or otherwise, at the time when the deceased person made the statement, of any relevant matter dealt with in the statement, and (b) the presence or absence of any incentive for the deceased person to conceal or misrepresent any relevant matter in the statement. (9) Subject to subsection (11), where evidence of a statement of a deceased person is admitted under this section, evidence is

admissible for the purpose of destroying or supporting the credibility of the deceased person. [page 555] (10) Subject to subsection (11), where evidence of a statement of a deceased person is admitted under this section, evidence is admissible for the purpose of showing that the statement is inconsistent with another statement made at any time by the deceased person. (11) No evidence of a matter is admissible under subsection (9) or (10) in relation to a statement of a deceased person where, if the deceased person had been called as a witness and had denied the matter in cross-examination, evidence would not be admissible if adduced by the cross-examining party. (12) This section applies notwithstanding the rules against hearsay and notwithstanding that a statement is in such a form that it would not be admissible if given as oral testimony, but does not make admissible a statement of a deceased person which is otherwise inadmissible. (13) The exceptions to the rules against hearsay set out in this section are in addition to the exceptions to the hearsay rule set out in the Evidence Act 1995.

Northern Territory Family Provision Act 1970 An act to ensure that the family of a deceased person receives adequate provision out of his estate

Short title 1 This Act may be cited as the Family Provision Act.

Commencement 2 This Act shall come into operation on a date to be fixed by the Administrator by notice in the Gazette.

Repeal 3 The Testator’s Family Maintenance Ordinance 1929 and the Testator’s Family Maintenance Ordinance 1931 are repealed.

Definitions 4 (1) In this Act unless the contrary intention appears: Aboriginal means a person who is a member of the aboriginal race of Australia. administration means probate, granted in the Territory, of the will of a deceased person or letters of administration, granted in the Territory, of the estate of a deceased person, whether with or without a will annexed, and whether granted for general, special or limited purposes and includes an order to collect and administer the estate of a deceased person granted to the Curator of Deceased Estates or the Public Trustee. [page 556] administrator, in relation to the estate of a deceased person, means a person to whom administration has been granted in respect of the deceased person. deceased person includes a person in respect of whose estate there has been

made a grant of administration expressed to be made on presumption of the death of the person: intestate has the same meaning as in section 61(1) of the Administration and Probate Act. the Court means the Supreme Court. will includes a codicil. (2) Where probate of a will or letters of administration of an estate granted outside the Territory is sealed with the seal of the Court in pursuance of section 111 of the Administration and Probate Act, the probate as so sealed or the administration as so sealed, as the case requires, shall be of the will, or letters of administration of the estate granted in the Territory on the date on which it was so sealed.

Application of Act 5 (1) Subject to this section, this Act applies in relation to the estates of all deceased persons, including a person who dies before the commencement of this Act. (2) Where the whole or any part of the estate of a deceased person has been lawfully distributed before the commencement of this Act, a person is not entitled to make application under this Act for provision out of that estate or the part of the estate that has been so distributed, as the case may be, unless he would have been entitled to make an application for provision out of the estate or that part of the estate under the Testator’s Family Maintenance Ordinance if that Ordinance had continued in force.

Transitional provisions 6 (1) An order made by the Court under the Testator’s Family Maintenance Ordinance that was in force immediately before the

commencement of this Act continues in force and has effect as if it were an order made under this Act. (2) Proceedings instituted under the Testator’s Family Maintenance Ordinance that were pending immediately before the commencement of this Act shall be deemed, on and after the date of commencement of this Act, to have been instituted under this Act and this Act applies to and in relation to those proceedings. (3) Where an appeal has been or is instituted from a judgment of the Court in proceedings instituted under the Testator’s Family Maintenance Ordinance and the appeal has not been finally disposed of before the commencement of this Act, the Testator’s Family Maintenance Ordinance continues to apply to and in relation to that appeal. [page 557]

Persons entitled to apply, &c. 7 (1) Subject to this section, each of the following persons is entitled to make application to the Court for provision out of the estate of a deceased person: (a) a spouse or de facto partner of the deceased person; (b) a former spouse or de facto partner of the deceased person; (c) a child of the deceased person; (d) a stepchild of the deceased person; (e) a grandchild of the deceased person; (f)

a parent of the deceased person.

(2) A person, being: (a) a former spouse or de facto partner of a deceased person; or (b) a stepchild of a deceased person, is not entitled to make an application to the Court for provision out of the estate of the deceased person unless the person was maintained by the deceased person immediately before his or her death. (3) A grandchild of a deceased person is not entitled to make an application to the Court for provision out of the estate of the deceased person unless: (a) the parent of the grandchild who was a child of the deceased person died before the deceased person died; or (b) one or both of the parents of the grandchild was or were alive at the date of the death of the deceased person and the grandchild was not maintained by that parent or by either of those parents immediately before the death of the deceased person. (4) A parent of a deceased person is not entitled to make an application to the Court for provision out of the estate of the deceased person unless: (a) the parent was maintained by the deceased person immediately before his death; or (b) the deceased person was not survived by a spouse or de facto partner or any of the children of the deceased person. (5)–(6) [Omitted] (7) For the purposes of this section, a person shall not be

regarded as having been maintained by the deceased person immediately before his death unless: (a) there was in force at that time an order of a court requiring the deceased person to pay maintenance to or for the benefit of the other person; (b) the deceased person was, at that time, whether under an agreement in writing or otherwise, maintaining that other person or making a contribution to the maintenance of [page 558] that other person, being a contribution that, in all of the circumstances, can be regarded as other than a nominal contribution; or (c) a court would, if the deceased person were still living, have power to make an order requiring the deceased person to pay maintenance to or for the benefit of the other person. (8) For the purposes of this section, a child of the deceased person born alive after the death of that person shall be regarded as having been born before the death of the deceased person.

Persons entitled may obtain order for proper maintenance, &c., out of the estate of the deceased person 8 (1) Subject to this Act, upon application made by or on behalf of a person entitled to apply to the Court under section 7, if the Court is satisfied that adequate provision is not available, under the terms of the will of a deceased person or under the law applicable on the death of the person as an intestate or under the will and that law, from the estate of the deceased person for the

proper maintenance, education and advancement in life of the person by whom, or on whose behalf the application is made, the Court may, in its discretion and having regard to all the circumstances of the case, order that such provision as the Court thinks fit be made out of the estate of the deceased person. (2) In considering the adequacy of the provision available from the estate of the deceased person for a person who has made application for provision out of the estate of the deceased person, the Court shall regard any benefits conferred upon that person or another person by the exercise, whether expressly or otherwise, by the deceased person by his will of a general or special power of appointment as forming part of the provision available from the estate of the deceased person for the person upon whom those benefits are conferred. (3) The Court may refuse to make an order in favour of a person whose character is such, or whose conduct is or has been such, as, in the opinion of the Court, disentitles him to the benefit of an order. (4) The Court may regard an application for provision out of the estate of a deceased person by one person as an application made on behalf of all the persons entitled to make applications for provision out of the estate of the deceased person.

Time within which application is to be made 9 (1) Subject to subsection (2), an application for an order under section 8 shall be made within a period of 12 months after the date on which administration in respect of the estate of the deceased person has been granted. (2) The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time within which an application may be made under section 8.

[page 559] (3) An extension of time in pursuance of this section may be granted: (a) upon such conditions as the Court thinks fit; and (b) whether or not the time for making an application has expired. (4) An application for the extension, under this section, of the time within which an application for provision out of the estate of the deceased person may be made under section 8 may not be made after the estate of a deceased person has been lawfully and fully distributed. (5) An application for provision out of the estate of a deceased person shall, for the purposes of this section, be deemed to have been made on the day upon which the notice of motion or other document instituting the application is filed.

Service of application 10 (1) Where an application has been made to the Court for provision out of the estate of a deceased person, the applicant shall cause notice of the application to be served on each person who is an administrator of the estate of the deceased person. (2) The Court may: (a) of its own motion and either before or during the hearing of an application for an order for provision out of the estate of a deceased person; or (b) on an application made by the applicant for such an order or by the administrator of the estate of the deceased person,

order that notice of the application be served on such persons as the Court thinks fit.

Form of order 11 (1) An order under section 8 shall specify the amount and nature of the provision to be made for the person in whose favour the order is made and may specify such conditions, restrictions and limitations subject to which the provision is to be made as the Court thinks fit to impose. (2) Unless the Court otherwise orders, the burden of the provision ordered by the Court to be made for the benefit of a person shall, subject to subsection (1), be borne between the persons beneficially entitled to the estate of the deceased person (other than the person or persons in whose favour an order or orders under this Act is or are made), in proportion to the values of their respective interests in the estate. (3) Where persons are successively entitled to estates or interests in any property that is settled by the will of the deceased person, those estates and interests shall not, unless the Court otherwise orders, be valued separately but the proportion of the provision required by subsection (2) to be borne by those persons out of those estates and interests shall be raised or charged against the corpus of that property. [page 560]

Class fund 12 (1) Without limiting the powers of the Court under this Act, the Court may order that an amount specified in the order be set aside out of the estate of the deceased person and held on trust as a class fund for the benefit of 2 or more persons specified in the

order in whose favour orders for provision out of the estate of the deceased person have been made. (2) Where an amount is ordered to be held in trust as a class fund, the trustee of the fund shall invest so much of the amount as he does not apply in accordance with this subsection and may, subject to such directions or conditions as the Court gives or imposes, but otherwise as he thinks fit, apply the whole or any part of the income and capital of the fund for or towards the maintenance, education or advancement in life for the benefit of the persons for whose benefit the class fund is held, or any one or more of them to the exclusion of the other or others of them in such shares and in such manner as the trustee, from time to time determines. (3) Where one or more of the persons for whose benefit moneys are held in trust as a class fund dies, a reference in subsection (3) to the persons for whose benefit moneys are held in trust as a class fund shall, after the death of that person, be read as a reference to the survivor or survivors of those persons. (4) Where an amount is set aside as a class fund, the administrator of the estate of the deceased person shall, unless the Court otherwise orders, be the trustee of the class fund.

Property subject to power of appointment 13 (1) Where — (a) application is made under section 8 for an order that provision be made out of the estate of a deceased person; (b) the deceased person has, by his will, exercised a general or a special power of appointment in respect of property, being a power under which the deceased person was, immediately before his death, entitled to appoint the property to himself; and

(c) the Court is satisfied that — (i)

adequate provision for the person who has made the application cannot justly be made out of other property forming part of the estate of the deceased person; or

(ii) by reason of the existence of special circumstances, an order should be made that provision be made out of, or charged on, the property in respect of which the deceased person has exercised the general or special power of appointment, [page 561] the Court may order that provision be made out of, or charged on, the property in respect of which the deceased person has exercised the general or special power of appointment. (2) Where — (a) a testator has power to appoint, by will, any real property in such manner as he thinks fit; (b) by his will he has made a general devise of his real property or of his real property at a particular place, in the occupation of a particular person or otherwise described in a general manner without expressly exercising the power of appointment; and (c) by virtue of section 35 of the Wills Act that general devise is to be construed as including the real property over which the deceased person had that power of appointment, the other property forming part of the estate of the deceased

person referred to in subsection (1)(c)(i) shall be deemed to include the real property over which the deceased person had that power of appointment. (3) Where — (a) a testator has power to appoint, by will, any personal property in such manner as he thinks fit; (b) by his will, he has made a general bequest of his personal property or of any class of personal property described in a general manner without expressly exercising the power of appointment; and (c) by virtue of section 35 of the Wills Act, that general bequest is to be construed as including the personal property over which the deceased person had that power of appointment, the other property forming part of the estate of the deceased person referred to in subsection (1)(c)(i) shall be deemed to include the personal property over which the deceased person had that power of appointment.

Presumption of death 14 Where the Court makes an order under section 8 for provision to be made out of the estate of a person of which the Court has granted administration upon being satisfied by evidence supporting the presumption that the person may be presumed to be dead, the Court may direct that the provision shall not be made unless the person in whose favour the order is made gives an undertaking or security that he will, if the grant of administration is revoked on the ground that the person was living at the time of the grant: (a) where he has received property other than money under the order, restore the property or, at his option, pay an

amount equal to the value of the property at the time he received the property to the person whose death was presumed or, if that [page 562] person has subsequently died, to the administrator of the estate of that person; or (b) Where he has received money under the order, pay an amount equal to the amount of the money received by him under the order to the person whose death was presumed or, if that person has subsequently died, to the administrator of the estate of that person.

Exoneration of Act under this part of estate from provision 15 (1) The Court may, when making an order under section 8 or at any time after having made an order under that section, order a person who is entitled to a share in the estate of the deceased person as a legatee, devisee or beneficiary to pay a lump sum or periodical payments, or a lump sum and periodical payments, to represent, or in commutation of, such proportion of the provision ordered to be made for the person in whose favour the order is made as falls upon the legatee, devisee or beneficiary, and may exonerate the property or a specified part of the property to which the legatee, devisee or beneficiary is entitled from further liability in respect of that provision. (2) Where the Court makes an order under subsection (1), the Court may direct: (a) the manner in which a lump sum or periodical payment is to be secured;

the person to whom such a lump sum or periodical (b) payment is to be made; and (c) in what manner, if any, the lump sum or periodical payment is to be invested for the benefit of the person in whose favour the order under section 8 has been made.

Operation of order for provision out of estate of deceased person 16 (1) Subject to subsection (2), an order under section 8 operates as if it were a codicil to the will of the deceased person executed by the deceased person immediately before his death. (2) An order under section 8 in relation to property of a deceased person who died intestate operates as a modification of the provisions of Division 4 of Part III of the Administration and Probate Act in their application to that property.

Discharge, variation, &c., of order 17 (1) Subject to this section, the Court may, at any time and from time to time, upon application made by the administrator of the estate of the deceased person, or by any person beneficially entitled to, or interested in, a part of the estate of the deceased person, discharge, vary or suspend an order made by it under section 8 or any other order made by it under this Act. [page 563] (2) Where the Court has ordered periodical payments, or has ordered that a lump sum be invested for the benefit of a person, the Court may, if it is satisfied, on an application made by the administrator of the estate of the deceased person or by any person beneficially entitled to, or interested in, a part of the estate

of the deceased person, that the person for whose benefit the order was made has otherwise become possessed of or entitled to means for his proper maintenance, education or advancement in life, discharge, vary or suspend its order or make such other order as is just in the circumstances. (3) An order shall not be made under subsection (1) increasing a provision made by an order under this Act. (4) Notice of an application to the Court under this section shall be served on each person who takes a benefit under the order sought to be discharged, varied or suspended.

Certified copy of order 18 The Court shall, where it makes an order for provision out of the estate of a deceased person, an order under section 15 or 17, direct that a certified copy of the order be endorsed on, or annexed to, the probate of the will or letters of administration with the will annexed or letters of administration of the estate of the deceased person, as the case may be, and, for that purpose, may require the production of the probate or letters of administration.

Permission of Court necessary to validity of mortgage, charge or assignment of an interest 19 A mortgage, charge or assignment of any kind whatsoever, of or over the provision made, or to be made, by an order under this Act, is of no force or effect unless that mortgage, charge or assignment is made with the permission of the Court.

Court may order provision to be made out of property distributed 20 (1) Notwithstanding any distribution of the property of the deceased person made by the administrator of the estate of the deceased person before the administrator had notice of an

application for an order under section 8 made within 12 months after the date on which administration was granted, the Court may, subject to subsection (2), order that provision be made under this Act out of any property of the deceased person that has been so distributed. (2) The Court shall not make an order under subsection (1) if the making of that order would affect or disturb a distribution that was a proper distribution made for the purpose of providing for the maintenance, education or advancement in life of a person who was totally or partially dependent on the deceased person immediately before his death. [page 564]

Protection of administrator 21 An action does not lie against the administrator of the estate of a deceased person by reason of his having distributed the whole or any part of the estate of the deceased person if the distribution was a distribution referred to in section 20(2) or if: (a) the distribution was made before the administrator had notice of an application for an order under this Act or notice of an application to extend the time within which such an application may be made under this Act; and (b) before making the distribution, the administrator had given notices in accordance with section 96 of the Administration and Probate Act and the time specified in the notices or in the last of the notices for sending in claims had expired.

The Court may have regard to the testator’s reasons

22 (1) The Court shall, in determining an application for an order under section 8, have regard to the testator’s reasons, so far as they are ascertainable, for making the dispositions made by his will, or for not making provision or further provision, as the case may be, for a person who is entitled to make an application under this Act. (2) The Court may receive in evidence a statement signed by the testator and purporting to bear the date on which it was signed and to set out reasons for making or not making provision or further provision by the will of the testator for a person as evidence of those reasons. (3) Where a statement of a kind referred to in subsection (2) is received in evidence, the Court shall, in determining what weight, if any, ought to be attached to the statement, have regard to all the circumstances from which any inference may reasonably be drawn concerning the accuracy of the matters referred to in the statement.

Queensland Succession Act 1981 PART 4 — FAMILY PROVISION Definitions for pt 4 40 In this part — ‘child’ means, in relation to a deceased person, any child, stepchild or adopted child of that person. ‘dependant’ means, in relation to a deceased person, any person who was being wholly or substantially maintained or supported

(otherwise than for full valuable consideration) by that deceased person at the time of the person’s death being — (a) a parent of that deceased person; or [page 565] (b) the parent of a surviving child under the age of 18 years of that deceased person; or (c) a person under the age of 18 years.

Meaning of stepchild 40A (1) A person is a ‘stepchild’ of a deceased person for this part if — (a) the person is the child of a spouse of the deceased person; and (b) a relationship of stepchild and step-parent between the person and the deceased person did not stop under subsection (2). (2) The relationship of stepchild and step-parent stops on the divorce of the deceased person and the stepchild’s parent. (3) To remove any doubt, it is declared that the relationship of stepchild and step-parent does not stop merely because — (a) the stepchild’s parent died before the deceased person, if the deceased person’s marriage to the parent subsisted when the parent died; or (b) the deceased person remarried after the death of the stepchild’s parent, if the deceased person’s marriage to the parent subsisted when the parent died.

Estate of deceased person liable for maintenance 41 (1) If any person (the ‘deceased person’) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant. (1A) However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant. (2) The court may — (a) attach such conditions to the order as it thinks fit; or (b) if it thinks fit — by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or (c) refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, [page 566] disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.

(3) The incidence of the payment or payments ordered shall, unless the court otherwise directs, fall rateably upon the whole estate of the deceased person or upon so much thereof as is or may be made directly or indirectly subject to the jurisdiction of the court. (4) The court may, by such order or any subsequent order, exonerate any part of the estate of the deceased person from the incidence of the order, after hearing such of the parties as may be affected by such exoneration as it thinks necessary, and may for that purpose direct the personal representative to represent, or appoint any person to represent, any such party. (5) The court may at any time fix a periodic payment or lump sum to be paid by any beneficiary in the estate, to represent, or in commutation of, such proportion of the sum ordered to be paid as falls upon the portion of the estate in which the beneficiary is interested, and exonerate such portion from further liability, and direct in what manner such periodic payment shall be secured, and to whom such lump sum shall be paid, and in what manner it shall be invested for the benefit of the person to whom the commuted payment was payable. (6) Where an application has been filed on behalf of any person it may be treated by the court as, and, so far as regards the question of limitation, shall be deemed to be, an application on behalf of all persons who might apply. (7) The personal representative or the public trustee or the chief executive of the department in which the Child Protection Act 1999 is administered, or any person acting as the litigation guardian of a person under a legal incapacity, may apply on behalf of a person under a legal incapacity in any case where such person might apply, or may apply to the court for advice or directions as to whether the person ought so to apply; and, in the

latter case, the court may treat such application as an application on behalf of such person for the purpose of avoiding the effect of limitation. (8) Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made. (9) A person who, if a declaration of paternity were made upon the person’s application under the provisions of the Status of Children Act 1978, would be entitled to make an application under this part may make an application under this part but such application shall not be proceeded with until the person has obtained a declaration of paternity under that Act; and the court may give such directions and [page 567] act as it thinks fit to facilitate the making and determination of all necessary applications on behalf of that person under that Act and this part. (10) Upon any order being made, the portion of the estate comprised therein or affected thereby shall be held subject to the provisions of the order. (11) No mortgage, charge or assignment of any kind whatsoever of or over such provision, made before the order is made, shall be of any force, validity or effect, and no such mortgage, charge or assignment made after the order is made shall be of any force, validity or effect unless made with the permission of the court.

(12) Where any sum of money or other property is received by any person as a donatio mortis causa made by the deceased person that sum of money or that other property shall be treated for the purposes of this part as part of the estate of the deceased; but this subsection shall not render any person liable for having paid that sum or transferred that other property in order to give effect to that donatio mortis causa.

Court may vary order 42 (1) Where (whether before or after the commencement of this Act) the court has ordered a periodical payment or has ordered any part of an estate or a lump sum to be invested for the benefit of any person, it may from time to time on the application of any person inquire whether any party deriving benefit under the order is still living or has become possessed of or entitled to provision for the party’s proper maintenance or support and into the adequacy of the provision, or whether the provision made by the order for any such party remains adequate, and may increase or reduce the provision so made or discharge, vary or suspend the order, or make such other order as is just in the circumstances. (1A) However, the court shall not increase the provision so made unless the income of the estate or, as the case may be, the capital or income of the part of the estate or lump sum invested for the benefit of the person concerned in pursuance of the original order is considered by the court to be sufficient for the purposes of such increase and all other lawful payments (if any) therefrom. (2) Without derogating from the provisions of subsections (1) and (1A), where the court has increased the provision so made for the benefit of any person and at any subsequent date the income of the estate or, as the case may be, the capital or income of the part of the estate or lump sum invested for the benefit of the person concerned is considered by the court to be insufficient for

the purposes of such provision and all other lawful payments (if any) therefrom, the court may reduce or suspend any increase or discharge, vary or suspend the original order, or make such other order as is just in the circumstances. [page 568]

Manner of computing duty on estate 43 (1) Where an order is made by the court under this part, all duties payable in consequence of the death of the deceased person shall be computed in the following manner — (a) where the deceased person leaves a will — as if the provisions of such order had been part of the will; (b) where the deceased person did not leave a will — as if the provisions of such order had been part of the law governing the distribution of the estates of persons dying intestate. (2) Any duty paid in excess of the amount required to be paid under this section shall, on application and without further appropriation than this part, be refunded to the person entitled to receive the same.

Protection of personal representative 44 (1) No action shall lie against the personal representative by reason of the personal representative having distributed any part of the estate and no application or order under this part shall disturb the distribution, if it was properly made by the personal representative for the purpose of providing for the maintenance or support of the spouse or any child of the deceased person totally or partially dependent on the deceased person

immediately before the death of the deceased person whether or not the personal representative had notice at the time of the distribution of any application or intended application under this part in respect of the estate. (2) No person who may have made or may be entitled to make an application under this part shall be entitled to bring an action against the personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative after the person (being of full legal capacity) has notified the personal representative in writing that the person either — (a) consents to the distribution; or (b) does not intend to make any application that would affect the proposed distribution. (3) No action shall lie against the personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative — (a) not earlier than 6 months after the deceased’s death and without notice of any application or intended application under section 41(1) or 42 in relation to the estate; or (b) if notice under section 41(1) or 42 has been received — not earlier than 9 months after the deceased’s death, unless the personal representative receives written notice that the application has been commenced in the court or is served with a copy of the application. [page 569]

(4) For the purposes of this section notice to a personal representative of an application or intention to make any application under this part shall be in writing signed by the applicant or the applicant’s solicitor. (5) However, nothing in subsection (4) shall prevent the subsequent making of an application within any other period allowed by or pursuant to this part.

South Australia Inheritance (Family Provision) Act 1972 Short title 1 This Act may be cited as the Inheritance (Family Provision) Act 1972. [Next section is section 3]

Repeal of Testator’s Family Maintenance Act 1918 and saving provision 3 (1) The following Acts are repealed: the Testator’s Family Maintenance Act 1918; the Testator’s Family Maintenance Act 1943. (2) Any proceedings instituted in the Court pursuant to the Acts repealed by this Act and pending at the commencement of this Act may be continued and determined, and, subject to subsection (3) of this section, the law to be applied and the practice and procedure to be followed in relation to those proceedings shall be the same as if this Act had not been passed. (3) In any such proceedings the Court may, subject to such conditions as it thinks fit, permit an amendment of those

proceedings so as to include an application for the benefit of this Act and, in relation to any such application, the provisions of this Act shall apply and have effect as if the proceedings had been instituted under this Act.

Interpretation 4 In this Act, unless the contrary intention appears — ‘administration’ means probate of the will of a deceased person or letters of administration of the estate of a deceased person whether with or without the will annexed and whether granted for general, special or limited purposes; ‘administrator’ means any person to whom administration has been granted; ‘child’ in relation to a deceased person includes a person who is recognised as a child of that person by virtue of the Family Relationships Act 1975 and parent has a correlative meaning; ‘the Court’ means the Supreme Court or a judge thereof; [page 570] ‘domestic partner’, in relation to a deceased person, means a person declared under the Family Relationships Act 1975 to have been the domestic partner of the deceased as at the date of his or her death, or at some earlier date; ‘spouse’, in relation to a deceased person, means a person who was legally married to the deceased as at the date of his or her death.

Application 5 (1) Subject to subsection (2) of this section, this Act shall apply

in relation to the estates of all deceased persons, whether they died before or after the commencement of this Act. (2) Where the whole or any part of the estate of a deceased person has been lawfully distributed before the commencement of this Act, no person shall, in respect of that estate or that part thereof, as the case may be, be entitled to claim the benefit of this Act unless he would have been entitled to the benefit of an order under the Acts repealed by this Act.

Persons entitled to claim under this Act 6 The following persons are, in respect of the estate of a deceased person, entitled to claim the benefit of this Act: (a) the spouse of the deceased person; (b) a person who has been divorced from the deceased person; (ba) the domestic partner of the deceased person; (c) a child of the deceased person; [There are no paras (d)–(f).] (g) a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death; (h) a child of the child of the deceased person; (i)

a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime;

(j)

a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the

maintenance of, the deceased person during his lifetime.

Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person 7 (1) Where — (a) a person has died domiciled in the State or owning real or personal property in the State; and (b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim [page 571] the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life, the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled. (2) Notice of an application under subsection (1) of this section shall be served by the applicant on the administrator of the estate of the deceased person, and on such other persons as the Court may direct. (3) The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient. (4) The Court may, in making any order under this Act, impose such conditions, restrictions and limitations as it thinks fit.

(5) If, in respect of an application under subsection (1) of this section, it appears to the Court that the matter would be more appropriately determined by proceedings outside the State, the Court may (without limiting the powers conferred on it by the preceding provisions of this section) refuse to make an order under this section or adjourn the hearing of the application for such period as the Court thinks fit. (6) In making the order the Court may, if it thinks fit, order that the provision shall consist of a lump sum or periodic or other payments or a lump sum and periodic or other payments.

Time within which application to be made 8 (1) Subject to this section, an application shall not be heard by the Court at the instance of a person claiming the benefit of this Act unless the application is made within six months from the date of the grant in this State of probate of the will, or letters of administration of the estate, of the deceased person. (2) The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time for making an application for the benefit of this Act. (3) An extension of time granted pursuant to this section may be granted — (a) upon such conditions as the Court thinks fit; and (b) whether or not the time for making an application pursuant to subsection (1) of this section has expired. (4) An application for extension of time pursuant to this section shall be made before the final distribution of the estate. (5) Any distribution of any part of the estate made before the application for extension of time shall not be disturbed by reason of that application or any order made thereon.

[page 572] (6) An application for the benefit of this Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate. (7) Where an application has been made for the benefit of this Act, the Court may, if satisfied that it is just and expedient to do so, permit at any time prior to the final determination of the proceedings, the joinder of further claimants as parties to the application.

Contents or order 9 (1) Every order that provision be made for the maintenance, education or advancement of any person out of the estate of a deceased person must, inter alia — (a) specify the amount and nature of the provision thereby made; and (b) specify the part or parts of the estate of the deceased person out of which that provision shall be raised or paid, and prescribe the manner of raising and paying that provision; and (c) state the conditions, restrictions or limitations imposed by the Court. (2) Subject to subsection (3) of this section and unless the Court otherwise orders, the burden of any such provision shall, as between the persons beneficially entitled to the estate of the deceased person, be borne by those persons in proportion to the values of their respective interests in the estate. (3) Where the deceased person died leaving a will under which two or more persons are successively entitled to any property, the

successive interests shall not, unless the Court otherwise orders, be separately valued for the purposes of subsection (2) of this section, but the proportion of the provision to be borne by that property shall be raised or charged against the corpus thereof. (4) The Court shall, in every case in which an order is made, direct that a certified copy of the order be made upon the probate of the will, or letters of administration of the estate, of the deceased person, and for that purpose may require the production of the probate or letters of administration. (5) The Court may at any time, and from time to time, on the application of the administrator or of any person beneficially entitled to or interested in any part of the estate of the deceased person, rescind or alter any order. (6) Notice of an application under subsection (5) of this section must be served upon all persons entitled to any benefit under the order in respect of which the application is made. (7) Upon any order being made under this Act, the portion of the estate affected by the order shall be held subject to the provisions of the order. [page 573] (8) The Court may make such order as to the costs of any proceeding under this Act as it considers just.

Order to operate as will or codicil 10 Every provision made by an order shall, subject to this Act, operate and take effect as if it had been made — (a) if the deceased person died leaving a will, by a codicil to that will executed immediately before his death; or

(b) if the deceased person died intestate, by a will executed immediately before his death.

Court may fix periodic payment or lump sum 11 (1) The Court shall have power at any time to fix a periodic payment, or lump sum, or a periodic payment and a lump sum, to be paid by any person, to represent, or in commutation of, the proportion of the sum ordered to be paid that falls upon the portion of the estate to which he is entitled, and to exonerate that portion of the estate from further liability. (2) The Court may give incidental directions as to the payment or investment of the lump sum or the manner in which the periodic payments are to be made or secured.

Court may vary or discharge order 12 Where the Court has ordered periodic payments, or has ordered a lump sum to be invested for the benefit of any person, it shall have power to inquire whether at any subsequent date the party benefited by the order has otherwise become possessed of, or entitled to, provision for his proper maintenance, education and advancement, and into the adequacy of that provision, and may discharge, vary, or suspend the order, or make such other order as is just in the circumstances.

Mortgage or assignment of provision invalid 13 No mortgage, charge, or assignment of any kind whatsoever of or over the provision made by an order under this Act shall, unless made with the prior permission of the Court, be of any force, validity, or effect.

Liability of administrators after distribution of estate 14 (1) An administrator of the estate of a deceased person who has lawfully distributed the estate or any part thereof shall not be

liable to account for that estate or that part thereof, as the case may be, to any person claiming the benefit of this Act, unless the administrator had notice of the claim at the time of the distribution. (2) For the purposes of this section, notice of the claim — (a) shall be in writing signed by the claimant or his solicitor; and [page 574] (b) shall lapse and be incapable of being renewed unless, before the expiration of three months after the administrator receives notice of the claim a copy of an application by the claimant for the benefit of this Act has been served on him. (3) Subsection (1) of this section shall not prevent the Court from ordering that any provision under this Act be made out of the estate, or any part thereof, after it has been distributed.

Method of apportioning duty on estate 15 (1) For the purpose of apportioning the duty payable on the estate of the deceased person, any provision made under this Act by an order of the Court shall be deemed to be a bequest made by the deceased person — (a) if he died leaving a will, by a codicil to that will executed immediately before his death; or (b) if he died intestate, by a will executed immediately before his death. (2) Notwithstanding the provisions of any other Act, where an

order is discharged, rescinded, altered or suspended, a due adjustment of the duty payable on the estate of the deceased person shall be made.

Public Trustee deemed to be administrator where order has been made authorising him to administer estate 16 Where an order has been made under the Administration and Probate Act 1919 as amended, authorising the Public Trustee to administer the estate of a deceased person who has died leaving a will, then, for the purposes of this Act — (a) the Public Trustee shall be deemed to be the administrator of the estate of the deceased person; and (b) the order shall be deemed to be the grant of probate of the will, or letters of administration with the will annexed of the estate, of the deceased person.

Rules of Court 17 (1) The judges of the Court may, subject to and in accordance with the Supreme Court Act 1935 as amended, make such rules as may be necessary or expedient for regulating the practice and procedure of the Court to be adopted for the purposes of this Act. (2) Until rules are made in pursuance of this section the general practice and procedure of the Court shall, so far as applicable and not inconsistent with this Act, apply to all proceedings of the Court under this Act. [page 575]

Tasmania

Testator’s Family Maintenance Act 1912 Short title 1 This Act may be cited as the Testator’s Family Maintenance Act 1912.

Interpretation 2 (1) In this Act — ‘adopted child’ — (a) in the case of a child that is adopted in this State, means a child that is adopted by a person, or by a person and his spouse jointly, in accordance with the law relating to the adoption of children; or (b) in the case of a child that is adopted elsewhere than in this State, means a child that is adopted by a person, or by a person and his spouse jointly, in accordance with the law of the State, Territory, or country where the adoption takes place, as in force at the date of the adoption; ‘child’ includes — (a) an adopted child; and (b) a stepchild; and (c) a surrogate child; ‘Court’ means the Supreme Court; ‘spouse’ includes the person with whom a person is, or was at the time of his or her death, in a significant relationship, within the meaning of the Relationships Act 2003; ‘stepchild’ means, in relation to a person — (a) a child of that person’s spouse; and

(b)

a child whose natural parent was the spouse of that person at the time of the natural parent’s death;

‘surrogate child’ means, in relation to another person, a person (whether or not the person has attained the age of 18 years) — (a) who is a child of the other person by virtue of the operation of section 26(1) of the Surrogacy Act 2012, or a law, of another State or a Territory or a foreign country, that corresponds to that Act; and (b) who has not ceased to be a child of the other person under that Act or law; ‘will’ includes a codicil and a nomination made in accordance with the rules of a society within the meaning of the Friendly Societies (Tasmania) Code. [page 576] (2) For the avoidance of doubt, the definition of stepchild, as substituted by the Justice and Related Legislation (Miscellaneous Amendments) Act 2015, does not apply in respect of a claim against the estate of a person whose death occurred before the commencement of that Act. (3) [repealed] (4) [repealed] (5) [repealed]

Claims for maintenance against estate of deceased person 3 (1) If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be

made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit. (2) In addition to, and without prejudice to, any other powers conferred on the Court or a judge by subsection (1) of this section, the Court or judge may order that the provision to be made out of the estate of the deceased person shall consist of — (a) the payment to the applicant of a lump sum; (b) a life interest or any lesser interest in any dwelling-house belonging to that estate; or (c) a life interest or any lesser interest in a dwelling-house that the Court or judge may order to be purchased for occupation by the applicant — and may, in any case, order that that provision shall be made upon and subject to such terms and conditions, if any, as the Court or judge may think desirable in the circumstances of the case. (3) For the purposes of paragraph (c) of subsection (2) of this section, the Court or judge may, notwithstanding any provision or direction to the contrary in the will of a deceased person, order that any moneys belonging to or forming part of the estate of that person shall be expended in the purchase of the fee simple of any real property.

(4) Where an application under subsection (1) of this section is made by or on behalf of any person, the Court or a judge may order that it shall be regarded as an application on behalf of all persons who are entitled under this Act to make such an application, and if the Court or a judge so orders, the application shall, for the purposes of section eleven, be treated as an application made by all of those persons. [page 577] (5) The executor or administrator of the estate of a deceased person, on behalf of a person who is entitled to make an application under subsection (1) of this section and who is not of full age or mental capacity, may — (a) make an application under that subsection; or (b) apply to the Court or a judge for directions as to whether he should make an application under that subsection — and, in the latter case, the Court or judge may treat the application for directions as an application under that subsection on behalf of that person.

Persons entitled to claim under this Act 3A An application under subsection (1) of section three for provision out of the estate of a deceased person may be made by or on behalf of all or any of the following persons, that is to say: (a) The spouse of the deceased person; (b) The children of the deceased person; (c) The parents of the deceased person, if the deceased person dies without leaving a spouse or any children;

(d)

A person whose marriage to the deceased person has been dissolved or annulled and who at the date of the death of the deceased person was receiving or entitled to receive maintenance from the deceased person whether pursuant to an order of a court, or to an agreement or otherwise; and

(e) A person whose significant relationship, within the meaning of the Relationships Act 2003, with the deceased person had ceased before the date of the death of the deceased person and who was receiving or entitled to receive maintenance from the deceased person whether pursuant to an order of a court or to an agreement or otherwise.

Application by summons in chambers 4 (1) Every such application shall be made by summons in chambers, entitled ‘In the matter of the Testator’s Family Maintenance Act 1912, and in the matter of the estate of deceased’. (2) A summons under this section shall be served on — (a) the executor of the will of the deceased person or the person to whom letters of administration with the will annexed have been granted, or, in the case of an intestate estate, the administrator of that estate; and (b) such other persons as the Court or a judge may direct to be served therewith. (3) The judge may, if he thinks fit, adjourn such summons into Court. 5 [repealed] [page 578]

Powers of Court or judge 6 At the hearing of such application the Court or judge shall inquire fully into the estate of the deceased person, and for that purpose may — (a) summon and examine the persons who are entitled to make an application under this Act, or such of them as the Court or judge may think it desirable to examine, and also such witnesses as may be necessary; and (b) require the executor or person applying for probate or letters of administration to furnish full particulars of the estate.

Court or judge to consider net estate and means of widow or child 7 In granting or refusing any such application, and in fixing the amount of the provision to be made under this Act for any person who is entitled to make an application under subsection (1) of section three, the Court or judge shall have regard, inter alia, to — (a) the net value only of the estate of the deceased person, as ascertained by deducting from the gross value thereof all debts, testamentary and funeral expenses, and all other lawful liabilities to which the said estate is subject; and (b) whether any such person is entitled to independent means, whether secured by any covenant, settlement, transfer, or other provision made by the deceased person during his life or derived from any other source whatsoever.

Cases in which Court or judge may refuse application 8 (1) The Court or judge may refuse any such application if the character or conduct of any person by or on behalf of whom the

application is made is such as in the opinion of the Court or judge should disentitle him or her to the benefit of any provision under this Act. (2) The Court or judge in making any order under this Act may impose such conditions, restrictions, and limitations, whether to prevent, restrict, or defeat any alienation or charge of or upon the benefit of any provision made under such order or otherwise, as the Court or judge may think fit. (3) [repealed]

Evidence as to deceased’s reasons for dispositions 8A (1) On the hearing of an application under subsection (1) of section three, the Court or judge may have regard to the deceased person’s reasons, so far as they are ascertainable, for making the dispositions made by his will, or for not making any provision or further provision, as the case may be, for any person, and the Court or judge may accept such evidence of those reasons as it or he considers sufficient, whether that evidence would otherwise be admissible in a court of law or not. [page 579] (1A) Where an application under section 3(1) relates to a will made under Part 3 of the Wills Act 2008 by the Guardianship and Administration Board or the Court, the Court or judge may have regard to the records of the Board or Court relating to the person for whom the will was made and the reasons given by the Board or Court for making an order authorising the making or alteration of a will in specific terms. (2) Nothing in this section shall be construed as restricting the evidence that is admissible, or the matters that may be taken into

account, on the hearing of an application under subsection (1) of section three.

Contents of order 9 (1) Every order under this Act making provision for any person shall specify, inter alia — (a) the amount and nature of such provision; (b) the manner in which such provision shall be made; or be raised or paid, out of some, and what, part of the estate of the deceased person; (c) how and by whom the burden of any such provision shall be borne; and (d) any conditions, restrictions, or limitations imposed by the Court or judge. (2) The Court or judge shall in every case in which provision is made under this Act direct that a certified copy of such order be made upon the probate of the will or letters of administration, with the will annexed, of the estate of the deceased person, or, as the case may be, upon the letters of administration of the estate of the deceased person, and for that purpose shall retain such probate or letters until such copy is made. (3) Subject to this Act, every provision made under this Act operates and takes effect — (a) in the case of the estate of a person who dies testate, as if it had been made by a codicil to the will of the deceased person executed immediately before his death; or (b) in the case of the estate of a person who dies intestate, as a modification of the provisions of the Intestacy Act 2010. (4) If in the opinion of the Court or a judge it is desirable so to

do, having regard to all the circumstances of the case, the Court or judge may, in any order under this Act making provision for the spouse of a deceased person, direct that that provision shall operate for the benefit of the spouse notwithstanding that he or she may, at any time after the making of the order, remarry or enter into a significant relationship, within the meaning of the Relationships Act 2003. (5) The Court or a judge may, at any time, on the application of the executor or administrator of the estate of a deceased person or of any [page 580] person who is beneficially entitled to, or interested in, any part of that estate — (a) rescind any order making any provision under this Act out of that estate or any part thereof; or (b) alter any such order by increasing or reducing the amount of any provision made thereby or by varying such order in such manner as the Court or judge thinks proper. (5A) The Court or a judge shall not, in the exercise of the power conferred on it or him by paragraph (b) of subsection (5) of this section, alter an order under this Act so as to disturb a distribution of any part of the estate that was lawfully made before the making of the application for the alteration. (6) A person who makes an application under subsection (5) of this section shall cause notice of the application to be served on all persons taking any benefit under the order sought to be rescinded or altered.

(7) Upon an order being made under this Act, the portion of the estate comprised therein or affected thereby shall be held subject to the provisions of the order.

Provision for class fund 10 (1) Without prejudice to the powers conferred on the Court or a judge under any other provision of this Act, the Court or a judge may order that any amount specified in an order made on an application under subsection (1) of section three shall be set aside out of the estate to which the order relates and held on trust as a class fund for the benefit of two or more persons specified in the order (being persons who are entitled under section three A to make an application under that subsection). (2) Where an amount is ordered to be held on trust as a class fund for any persons, pursuant to this section, that amount shall be invested, and the trustee may — (a) in his discretion but subject to such directions and conditions as the Court or judge may give or impose, apply the income and capital of that amount, or so much thereof as the trustee from time to time thinks fit, for or towards the maintenance or education (including past maintenance or education provided after the death of the deceased person), or the advancement or benefit, of those persons or of any one or more of them to the exclusion of the other or others of them, in such shares and proportions, and generally in such manner, as the trustee thinks fit; and (b) so apply the income and capital of that amount notwithstanding that only one of those persons remains alive. (3) For the purposes of this section, the expression ‘trustee’

means the executor or administrator of the estate of the deceased person [page 581] unless the Court or judge appoints any other trustee (whether by the order creating the class fund or subsequently), in which case it means the trustee so appointed. (4) If the trustee is not the executor or administrator of the estate of the deceased person, the Court or judge may give such directions as it or he thinks fit relating to the payment to the trustee of the amount that is to be held on trust as a class fund, and may exercise any power conferred on the Court by section forty-seven of the Trustee Act 1898, either on the creation of the class fund or at any time during the continuance of the trusts thereof.

Incidence of payments ordered 10A (1) The incidence of any payment directed to be made by an order under this Act shall, unless the Court or a judge otherwise orders, fall ratably upon the whole estate of the deceased person, or, where the authority of the Court does not extend or cannot be made to extend to the whole estate, ratably upon such part of the estate as is subject to the authority of the Court. (2) The Court or a judge may exonerate any part of the estate of a deceased person from the incidence of an order under this Act, after hearing such of the parties who may be affected by the exoneration as the Court or judge thinks necessary, and may, for that purpose, direct any executor or administrator to represent, or appoint any person to represent, any of those parties. (3) The Court or a judge may, at any time, fix a periodical

payment or lump sum to be paid by any beneficiary in the estate of the deceased person to represent, or in commutation of, such proportion of the sum ordered to be paid as falls upon the portion of the estate in which that beneficiary is interested, and may exonerate that portion from further liability, and may direct in what manner the periodical payment shall be secured, and to whom the lump sum shall be paid, and in what manner it shall be invested for the benefit of the person to whom the commuted payment is payable.

Adjustment of estate duty 10B For the purpose of apportioning the duty payable on the estate of a deceased person, any provision directed to be made by an order under this Act shall — (a) if the deceased person died testate, be deemed to be a bequest made by the deceased person by a codicil executed immediately before his death; or (b) if the deceased person died intestate, be deemed to be a bequest made by the deceased person as if effected by a will made by him immediately before his death. [page 582]

Time within which application to be made 11 (1) Except as provided by subsection (2) of this section, the Court or judge shall have no jurisdiction to hear any application, or to make any order under this Act, unless the summons hereinbefore mentioned be taken out before or not later than three months after the date of grant of probate of the will of the deceased person, or letters of administration of the estate of the deceased person, as the case may be.

(2) Notwithstanding anything in subsection (1) of this section, upon application being made in that behalf by a person claiming the benefit of this Act, the Court or a judge may, after hearing such of the persons affected or likely to be affected by that application as it or he may think fit, extend the time limited by that subsection for the taking out of a summons for such further period as the Court or judge may think necessary. (3) The powers conferred on the Court or a judge by subsection (2) of this section may be exercised notwithstanding that the time limited by subsection (1) of this section for the taking out of a summons may have expired (whether that time expired or expires before or after the commencement of this subsection). (4) An application under subsection (2) of this section shall be made before the final distribution of the estate of the deceased person, and no distribution of any part of the estate made before the making of an application under that subsection shall be disturbed by reason of that application or of any order made thereon or in consequence thereof.

Victoria Administration and Probate Act 1958 Definitions 3 (1) In this Act unless inconsistent with the context or subjectmatter — ‘Court’ means the Supreme Court of Victoria; ‘domestic partner’ of a person who dies means a registered domestic partner or an unregistered domestic partner of that person;

‘dust-related condition’ means — (a) a disease specified in the First Schedule; or (b) any other pathological condition of the lungs, pleura, peritoneum or sinus that is attributable to dust; ‘legal practitioner’ means an Australian legal practitioner; ‘parent’ of a child includes a person who has day to day care and control of the child and with whom the child is ordinarily resident; [page 583] ‘Part’ means Part of this Act; ‘partner’ of a person who dies means the person’s spouse or domestic partner; ‘registered caring partner’ of a person who dies means a person who, at the time of the person’s death, was in a registered caring relationship with the person within the meaning of the Relationships Act 2008; ‘registered domestic partner’ of a person who dies means a person who, at the time of the person’s death, was in a registered domestic relationship with the person within the meaning of the Relationships Act 2008; ‘registrar’ means the registrar of probates appointed pursuant to the Supreme Court Act 1986 and includes an assistant registrar of probates; ‘spouse’ of a person who dies means a person who was married to the person at the time of the person’s death; ‘State Trustees’ means State Trustees Limited (A.C.N. 064

593 148); ‘the Rules’ means the Rules of Court made by the Judges of the Court whether made under powers conferred under this Act or otherwise. ‘unregistered domestic partner’ of a person who dies means a person (other than a registered domestic partner of the person) who, although not married to the person — (a) was living with the person at the time of the person’s death as a couple on a genuine domestic basis (irrespective of gender); and (b) either — (i)

had lived with the person in that manner continuously for a period of at least 2 years immediately before the person’s death; or

(ii) is the parent of a child of the person, being a child who was under 18 years of age at the time of the person’s death. (2) In this Act, if the context requires — (a) a reference to the granting of probate or administration is to be construed as a reference to the making of an order granting probate or administration; and (b) a reference to a grant is to be construed as a reference to an order for a grant; and (c) a reference to probate is to be construed as a reference to an order for a grant of probate; and (d) a reference to administration is to be construed as a reference to an order granting letters of administration.

[page 584] (3) For the purposes of the definition of unregistered domestic partner in subsection (1), in determining whether persons were unregistered domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.

PART IV — FAMILY PROVISION Definitions 90 In this Part unless inconsistent with the context or subjectmatter — ‘Court’ means the Supreme Court or the County Court; ‘disability’ means a disability — (a) that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and (b) the impairment or impairments are, or are likely to be, permanent; and (c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities — (i)

communication;

(ii) social interaction;

(iii) learning; (iv) mobility; (v) self-care; (vi) self-management; and (d) the impairment or impairments affect the person’s capacity for social or economic participation; ‘eligible person’ means — (a) a person who was the spouse or domestic partner of the deceased at the time of the deceased’s death; (b) a child of the deceased, including a child adopted by the deceased who, at the time of the deceased’s death, was — (i)

under the age of 18 years; or

(ii) a full-time student aged between 18 years and 25 years; or (iii) a child with a disability; (c) a stepchild of the deceased who, at the time of the deceased’s death, was — (i)

under the age of 18 years; or [page 585]

(ii) a full-time student aged between 18 years and 25 years; or (iii) a stepchild with a disability; (d) a person who, for a substantial period during the life of

the deceased, believed that the deceased was a parent of the person and was treated by the deceased as a natural child of the deceased who, at the time of the deceased’s death, was — (i)

under the age of 18 years; or

(ii) a full-time student aged between 18 years and 25 years; or (iii) a child with a disability; (e) a former spouse or former domestic partner of the deceased if the person, at the time of the deceased’s death — (i)

would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and

(ii) has either — (A) not taken those proceedings; or (B) commenced but proceedings; and

not

finalised

those

(iii) is now prevented from taking or finalising those proceedings because of the death of the deceased; (f)

a child or stepchild of the deceased not referred to in paragraph (b) or (c);

(g) a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in paragraph (d); (h) a registered caring partner of the deceased; (i)

a grandchild of the deceased;

(j)

a spouse or domestic partner of a child of the deceased (including a stepchild or a person referred to in paragraph (d) or (g)) if the child of the deceased dies within one year of the deceased’s death;

(k) a person who, at the time of the deceased’s death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member; ‘family provision order’ means an order under section 91; ‘personal representative’ means the executor original or by representation or administrator for the time being of a deceased person; ‘will’ includes codicil and every other testamentary instrument. [page 586]

Eligible person may apply for family provision order 90A (1) Subject to subsection (2), an application for a family provision order may be made to the Court by, or on behalf of, an eligible person. (2) An application under subsection (1) must be made — (a) within the time specified in section 99; and (b) otherwise in accordance with this Part and the Rules.

Court may make family provision order 91 (1) Despite anything to the contrary in this Act, on an

application under section 90A, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person. (2) The Court must not make a family provision order under subsection (1) unless satisfied — (a) that the person is an eligible person; and (b) in the case of a person referred to in paragraphs (h) to (k) of the definition of eligible person, that the person was wholly or partly dependent on the deceased for the eligible person’s proper maintenance and support; and (c) that, at the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and (d) that the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person, whether by — (i)

the deceased’s will (if any); or

(ii) the operation of Division 6 of Part I; or (iii) both the will and the operation of Division 6 of Part I. (3) For the purposes of subsection (2)(b), the Court must disregard any means-tested government benefits that the eligible person has received or is eligible to receive. (4) In determining the amount of provision to be made by a family provision order, if any, the Court must take into account — (a) the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and (b) the degree to which the distribution of the deceased’s estate fails to make adequate provision for the proper

maintenance and support of the eligible person; and (c) in the case of an eligible person referred to in paragraph (f) or (g) of the definition of eligible person, the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person’s proper maintenance and support; and [page 587] (d) in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of eligible person, the degree to which the eligible person was wholly or partly dependent on the deceased for the eligible person’s proper maintenance and support at the time of the deceased’s death. (5) The amount of provision made by a family provision order — (a) must not provide for an amount greater than is necessary for the eligible person’s proper maintenance and support; and (b) in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of eligible person, must be proportionate to the eligible person’s degree of dependency on the deceased for the person’s proper maintenance and support at the time of the deceased’s death.

Factors to be considered in making family provision order 91A (1) In making a family provision order, the Court must have regard to —

(a) the deceased’s will, if any; and (b) any evidence of the deceased’s reasons for making the dispositions in the deceased’s will (if any); and (c) any other evidence of the deceased’s intentions in relation to providing for the eligible person. (2) In making a family provision order, the Court may have regard to the following criteria — (a) any family or other relationship between the deceased and the eligible person, including — (i)

the nature of the relationship; and

(ii) if relevant, the length of the relationship; (b) any obligations or responsibilities of the deceased to — (i)

the eligible person; and

(ii) any other eligible person; and (iii) the beneficiaries of the estate; (c) the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject; (d) the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of — (i)

the eligible person; and

(ii) any other eligible person; and (iii) any beneficiary of the estate; (e) any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate; (f)

the age of the eligible person;

[page 588] (g) any contribution (not for adequate consideration) of the eligible person to — (i)

building up the estate; or

(ii) the welfare of the deceased or the deceased’s family; (h) any benefits previously given by the deceased to any eligible person or to any beneficiary; (i)

whether the eligible person was being maintained by the deceased before that deceased’s death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased had done so;

(j)

the liability of any other person to maintain the eligible person;

(k) the character and conduct of the eligible person or any other person; (l)

the effects a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries;

(m) any other matter the Court considers relevant. 92 [repealed]

Service of notice of application 93 Notice of an application under section 91 must be served on the personal representative of the deceased and on such other persons as the Court orders.

Powers of Court 94 At the hearing of such application the Court shall inquire

fully into the estate of the deceased, and for that purpose may — (a) summon and examine such witnesses as may be necessary; and (b) require the executor or administrator to furnish full particulars of the estate of the deceased; and (c) accept any evidence of the deceased person’s reasons for making the dispositions in his or her will (if any) and for not making proper provision for the applicant, whether or not the evidence is in writing. 95 [repealed]

Powers of Court in making orders 96 (1) [repealed] (2) The Court may in making any order under this Part impose such conditions restrictions and limitations whether to prevent restrict or defeat any alienation or charge of or upon the benefit of any provision made under such order or otherwise as it thinks fit. [page 589] (3) The Court may in making any order under this Part order that the provision may consist of a lump sum or a periodical or other payment.

Contents of family provision order 97 (1) Every family provision order making provision for any person shall specify (inter alia) — (a) the amount and nature of the provision; (b) the manner in which the provision shall be raised or paid

out of some and what part or parts of the estate of the deceased; and (c) any conditions restrictions or limitations imposed by the Court. (2) Unless the Court otherwise orders the burden of any such provision shall as between the person beneficially entitled to the estate of the deceased be borne by those persons in proportion to the values of their respective estates and interests in such estate: Provided that the estates and interests of persons successively entitled to any property which is settled by such will shall not for the purposes of this subsection be separately valued but the proportion of the provision made under this Part to be borne by such property shall be raised out of or charged against the corpus of such property. (3) The Court shall in every case in which a family provision order is made under this Part direct that a certified copy of such order be attached to the probate of the will or letters of administration and for that purpose shall retain in its custody such probate or letters of administration until such copy is attached. (4) Subject to this Part, a family provision order operates and takes effect — (a) if the deceased dies leaving a will disposing of the whole or any part of the deceased’s estate, as if the provision made by the family provision order had been made by the deceased by executing a codicil to that will immediately before the deceased’s death; or (b) if the deceased dies without leaving a will — (i)

as a modification of Division 6 of Part I in respect of so much of the deceased’s estate as is affected by the

family provision order; and (ii) as if the provision made by the family provision order had been made by the deceased in the deceased’s will. (5) The Court may at any time and from time to time on the application of the executor or administrator of the testator’s estate or of any person beneficially entitled to or interested in any part of the estate of the testator rescind or alter any family provision order. [page 590] (5A) Notice of an application under subsection (5) must be served on all persons taking any benefit under the family provision order sought to be rescinded or altered.

Adjustment of probate duty 98 For the purpose of apportioning the duty payable on the estate of any deceased person any provision made under this Part by a family provision order shall be deemed to have been made — (a) where the deceased dies leaving a will disposing of the whole or part of the deceased’s estate — by a codicil to the will of the testator executed immediately before the deceased’s death; or (b) where the deceased dies without leaving a will — by a will executed immediately before the deceased’s death.

Time within which application may be made 99 (1) An application to the Court for a family provision order must be made within 6 months after the date of the grant of

probate of the will or of letters of administration, as the case may be. (2) Despite subsection (1), on application, the Court may extend the period for making an application for a family provision order if, after hearing such of the parties affected as the Court thinks necessary, the Court considers it appropriate to extend the period, including in any case where the time for making an application has already expired. (3) An application for extension under subsection (2) must be made before the final distribution of the estate. (4) The making of an application for extension under subsection (2) and any order of the Court in relation to the application for extension does not disturb or affect the distribution of any part of the estate made prior to the making of that application.

Protection of personal representative against certain claims 99A (1) No action shall lie against the personal representative by reason of the personal representative having distributed any part of the estate, and no application or family provision order shall disturb the distribution, if it was properly made by the personal representative for the purpose of providing for the maintenance support or education of the partner or any child of the deceased totally or partially dependent on the deceased immediately before the death of the deceased, whether or not the personal representative had notice at the time of the distribution of any application or intended application under this Part for a family provision order in respect of the estate. [page 591] (2) No person who may have made or may be entitled to make

an application under this Part for a family provision order shall be entitled to bring a proceeding against the personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative after the person (being of full legal capacity) has notified the personal representative in writing that the person either — (a) consents to the distribution; or (b) does not intend to make any application that would affect the proposed distribution. (3) No action lies against a personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative after the expiry of 6 months after the grant of probate of the will or of letters of administration (as the case may be) and either — (a) the personal representative has not had notice of an application for a family provision order in respect of the estate; or (b) if the personal representative has had a notice of an intention to make an application for a family provision order in respect of the estate in accordance with subsection (4), the personal representative has not received written notice that an application for a family provision order has been made to the Court within 3 months of the receipt of that notice of an intention to make an application for a family provision order. (4) For the purposes of this section, notice to a personal representative of an intention to make any application for a family provision order referred to in subsection (3)(b) —

(a) must be in writing signed by the eligible person or the eligible person’s legal practitioner; and (b) lapses within 3 months from the receipt of the notice by the personal representative unless an application for a family provision order has been made to the Court; and (c) is incapable of being renewed. (5) Nothing in this section — (a) extends the period within which a person can make an application for a family provision order without a Court order; or (b) prevents the subsequent making of an application for a family provision order within any other period allowed by this Act.

[page 592]

Western Australia Family Provision Act 1972 Short title 1 This Act may be cited as the Family Provision Act 1972.

Commencement 2 This Act shall come into operation on a date to be fixed by proclamation.

Repeal and amendments 3 (1) On the coming into operation of this Act the Testator’s Family Maintenance Act 1939–1962, is repealed. [(2), (3) Omitted under the Reprints Act 1984 s 7(4)(e)]

Interpretation 4 (1) In this Act, unless a contrary or other intention appears — ‘Administration’ has the same meaning as it has in the Administration Act 1903; ‘Administrator’ means any person to whom probate of the will of a deceased person is granted, or to whom Administration is granted; and includes the Public Trustee, in any case where he is deemed to be an executor or administrator by reason of having filed an election to administer, and any Administrator appointed by direction of the Court in accordance with section 18;

‘child’ in relation to any person or persons includes an illegitimate child; ‘Court’ means the Supreme Court, or a Judge; ‘grandchild’ in relation to any person or persons includes an illegitimate child of a child of that person; ‘stepchild’ means a person who was alive on the date on which the deceased married or entered into a de facto relationship with a parent of the person but who is not a child of the deceased; ‘will’ includes disposition.

a

codicil

and

any

testamentary

(2) In any proceedings under this Act a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the Court. (3) Where a provision of this Act requires the Court to be satisfied of the existence of any ground or fact or as to any other matter, it is sufficient if the Court is reasonably satisfied of the existence of that ground or fact or as to that other matter. [page 593] (4) For the purposes of this Act, other than for the purposes of section 7(1)(e), the relationship between a parent and a child and any other relationship traced in any degree through that relationship, shall be recognised only if parentage is admitted by or established against the parent in the parent’s lifetime. (4a) Subsection (4) does not apply to or in relation to a relationship established by the Artificial Conception Act 1985.

Application 5 (1) The provisions of this Act apply in all cases, whether the deceased died before or after the coming into operation of this Act, but so that no distribution of any part of the estate of a deceased person that has been made before the coming into operation of this Act shall be disturbed in favour of any person by reason of any application or order made under this Act if it could not have been disturbed in favour of that person by reason of any application or order made under the Testator’s Family Maintenance Act 1939–1962, now repealed. (2) The provisions of sections 15, 16 and 17 of this Act apply to orders made before the coming into operation of this Act under section 11 of the Guardianship of Infants Act 1920. (3) Notwithstanding the repeal of the Testator’s Family Maintenance Act 1939–1962, effected by section 3(1) of this Act — (a) every order that is, under or by virtue of that Act, still in force on the coming into operation of this Act, continues to have effect as though made under this Act; (b) every proceeding that has been commenced under that Act and not completed shall be continued as though this Act had been in operation when the proceeding was so commenced.

Crown bound 6A This Act binds the State and, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

Claims against estate of deceased person 6 (1) If any person (in this Act called ‘the deceased’) dies, then, if the Court is of the opinion that the disposition of the deceased’s estate effected by his will, or the law relating to intestacy, or the

combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose. [page 594] (2) The Court in considering for the purposes of subsection (1) whether the disposition of the deceased’s estate effected by the law relating to intestacy, or by the combination of the deceased’s will and that law, makes adequate provision for the purposes of this Act shall not be bound to assume that the law relating to intestacy makes adequate provision in all cases. (3) The Court may attach such conditions to the order as it thinks fit, or may refuse to make an order in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient. (4) In making any such order the Court may, if it thinks fit, order that the provision may consist of a lump sum or a periodical or other payment. (5) If an order has been made or could have been made under subsection (1) in favour of a person (the eligible person), the Court may, on application by an eligible person, make an order under subsection (1) in favour of the eligible person in relation to the estate only if at the time an order was made or could have been made in favour of the eligible person —

(a) the evidence about the nature and extent of the estate did not reveal the existence of certain property (the undisclosed property); and (b) the value of the undisclosed property would have materially affected the provision that the Court ordered, or could have ordered, be made out of the estate in favour of the eligible person. (6) Despite section 12(1), notice of an application under subsection (5) in respect of an order that has been made must be served on all persons taking any benefit under the order and on such other persons as the Court may direct. (7) The Court cannot hear an application for an order under subsection (5) unless — (a) the application is made within 6 months from the date on which the applicant became aware of the existence of the undisclosed property; or (b) the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time. (8) A motion for leave to file out of time may be made at any time notwithstanding that the period specified in subsection (7)(a) has expired.

Interim order 7A (1) Before making an order under section 6(1), the Court may make an interim order if it is of the opinion that such an order is [page 595] necessary for the purpose of providing those things immediately

necessary for the maintenance, support or education (including past maintenance, support or education provided after the death of the deceased) of any person who was totally or partially dependent on the deceased immediately before the deceased’s death. (2) If the Court makes an interim order, the Court must proceed to determine an application under section 6(1) by confirming, revoking or altering the interim order.

Persons entitled to claim 7 (1) An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons — (a) a person who was married to, or living as the de facto partner of, the deceased person immediately before the death of the deceased person; (b) a person who at the date of the death of the deceased was receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner of the deceased whether pursuant to an order of any court, or to an agreement or otherwise; (c) a child of the deceased living at the date of the death of the deceased, or born within 10 months after the deceased’s death; (d) a grandchild of the deceased — (i)

who was being maintained wholly or partly by the deceased immediately before the deceased’s death; or

(ii) who, at the date of the deceased’s death, was living and one of whose parents was a child of the deceased who had predeceased the deceased; or

(iii) who was born within 10 months after the deceased’s death and one of whose parents was a child of the deceased who had predeceased the deceased; (ea) a stepchild of the deceased who was being maintained wholly or partly or was entitled to be maintained wholly or partly by the deceased immediately before the deceased’s death; (eb) a stepchild of the deceased, if — (i)

the deceased received or was entitled to receive property from the estate of a parent of the stepchild, otherwise than as a creditor of that estate; and

(ii) the value of that property, at the time of the parent’s death, is greater than the prescribed amount; (e) a parent of the deceased, whether the relationship is determined through a legal marriage or otherwise, where the [page 596] relationship was admitted by the deceased being of full age or established in the lifetime of the deceased. (2A) An application is not to be made under this Act by or on behalf of a person referred to in subsection (1)(ea) or (eb) unless the deceased person died on or after the day on which the Inheritance (Family and Dependants Provision) Amendment Act 2011 section 9(1)(b) came into operation. (2) No application under subsection (1) shall be heard by the Court unless — (a) the application is made within 6 months from the date

on which the Administrator becomes entitled to administer the estate of the deceased in Western Australia; or (b) the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time. (3) A motion for leave to file out of time may be made at any time notwithstanding that the period specified in subsection (2)(a) has expired.

Orders after distribution 8 (1) On an application for an order under this Act, the Court may make an order under section 65 of the Trustees Act 1962, in lieu of an order under this Act, in any case where the estate of the deceased, or part thereof, has been distributed among the persons entitled under the will or intestacy. (2) Where the Court, in exercise of the power conferred by subsection (1), makes an order under section 65 of the Trustees Act 1962, it shall have the same powers in respect of that order as it has in respect of an order made under this Act.

Order not to be inequitable as regards assets already distributed 9 In determining whether, and in what way, provision ought to be made by an order, the Court shall have regard to the provisions of section 65(8) of the Trustees Act 1962.

Order to take effect as codicil or as a devolution on intestacy 10 Every provision made by an order shall, subject to this Act, operate and take effect either as if the same had been made by a codicil to the will of the deceased executed immediately before his death or, in the case of intestacy, as a modification of the applicable rules of distribution.

Power of Administrator to distribute where immediately necessary 11 Where for the purpose of providing those things immediately necessary for the maintenance, support or education (including past maintenance, support or education provided after the death of the [page 597] deceased) of any person who was totally or partially dependent on the deceased immediately before of his death, an Administrator distributes the whole or any part of the estate to any such person, being a person entitled thereto, an action shall not lie against him in respect of such distribution and no order made under this Act or under section 65 of the Trustees Act 1962, shall disturb such distribution, whether or not the Administrator had notice immediately before of the distribution of any application, or intention to make an application, that would affect the estate.

Procedure 12 (1) Notice of an application under this Act shall be served by the applicant on the Administrator but it shall not be necessary to serve any notice of an application on any other person, or to make provision for the representation of any person on any application, by reason only of the person being entitled to apply, unless the Court, either at the time the direction is sought or subsequently considers that there are circumstances which render it desirable that the person be served or represented and so directs. (2) Where an application has been filed by or on behalf of any person, it may be treated by the Court as an application made on behalf of all persons who might apply, and as regards the question

of limitation it is to be deemed to be an application on behalf of all persons on whom notice of the application is served and all persons whom the Court has directed shall be represented by persons on whom the notice of the application is served.

Provision for class fund 13 (1) The Court may, if it thinks fit, order that an amount specified in the order shall be set aside out of the estate and held on trust as a class fund for the benefit of 2 or more persons specified in the order, being persons for whom provision may be made under this Act. (2) Where an amount is ordered to be held on trust as a class fund for any persons under subsection (1), that amount shall be invested and the trustee may at his discretion, but subject to such directions and conditions as the Court may give or impose, apply the income and capital of that amount, or so much thereof as the trustee from time to time thinks fit, for or towards the maintenance, support or education (including past maintenance, support or education provided after the death of the deceased) or the advancement or benefit of those persons, or any one or more of them to the exclusion of the other or others of them in such shares and proportions and generally in such manner as the trustee from time to time thinks fit; and may so apply the income and capital of that amount notwithstanding that only one of those persons remains alive. (3) For the purposes of this section the term ‘trustee’ means the Administrator, unless the Court appoints any other trustee, whether [page 598]

by the order creating the class fund or subsequently, in which case it means the trustee so appointed. (4) If the trustee is not the Administrator, then the Court may give such directions as it thinks fit relating to the payment to the trustee of the amount which is to be held on trust as a class fund and may exercise any power under section 89 of the Trustees Act 1962, either on the creation of the class fund or from time to time during the continuance of the trusts thereof.

Terms of the order 14 (1) Every order in which provision is made or altered shall specify the part or parts of the estate of the deceased or, where applicable, the part or parts of the distributed estate out of which such provision shall be raised or paid, and prescribe the manner of raising and paying such provision. (2) Subject to subsection (3), and unless the Court otherwise orders, the burden of any provision shall, as between the persons beneficially entitled to the estate of the deceased, be borne by those persons in proportion to the value of their respective interests in such estate. (3) The estates and interests of persons successively entitled to any property which is settled by the will of a testator shall not, for the purposes of this section, be separately valued, but the proportion of the provision to be borne by such property shall be raised or charged against the corpus of such property. (4) The Court, in every case in which an order is made or altered or in which an Administrator is appointed in accordance with section 18, shall direct that a certified copy of the order or alteration be made upon the probate of the will or the letters of administration of the estate of the deceased, as the case may be,

and for that purpose may require the production of the probate or letters of administration. (5) Upon any order being made, the portion of the estate comprised therein or affected thereby shall be held subject to the provisions of the order. (6) The Court may make such order as to the costs of any proceeding under this Act as it deems just. (7) The Court may give such consequential directions as it thinks fit for the purpose of giving effect to an order made under this Act.

Rescission, or suspension of order and reduction of provision 15 (1) On the application by or on behalf of — (a) the Administrator; (b) any person beneficially entitled to or interested in the estate of the deceased; or (c) a person for whom provision may be made under this Act, [page 599] and having regard to the hardship that would be caused to any person taking benefit under the order and to all the circumstances of the case, the Court may rescind or suspend any order, or reduce the provision made under it. (2) Notice of any application made under subsection (1) shall be served on all persons taking any benefit under the order in question and on such other persons as the Court may direct.

Order for increased provision

16 (1) Where it would not be inequitable to grant relief having regard to all possible implications in respect to other persons, and an application for increased provision is made by or on behalf of a person in respect of whom an order has been made under this Act on the ground that since the date of that order circumstances have so changed that undue hardship will be caused if increased provision is not made, the Court may make an order for increased provision. (2) Notice of any application made under subsection (1) shall be served on the Administrator and on such other persons as the Court may direct.

Court may decide effect of order on property disposed of 17 Where the burden of any provision ordered to be made falls upon the portion of the estate to which any person would, apart from that order, be entitled under the will or on intestacy, the Court may determine that a periodic payment or a lump sum shall be set aside or appropriated to represent or in commutation of such proportion of the provision ordered to be made as falls upon that portion of the estate, and thereupon — (a) the Court may exonerate such portion from all or any further liability; (b) the Court may direct in what manner the periodic payment shall be secured and to whom any lump sum shall be paid; (c) the Court may give directions as to the manner in which any moneys accruing shall be invested for the benefit of the person in whose favour the provision is made.

Appointment of Administrator by the Court 18 (1) On any application made under this Act, where it is

proved to the satisfaction of the Court — (a) that the executor or executors or any of them appointed by the testator; (b) that any person to whom Administration has been granted or who has been appointed as an administrator or receiver under the Administration Act 1903; or (c) that any person who has been appointed Administrator for the purposes of this Act, [page 600] is guilty of abuse of office or dereliction of duty, the Court may direct that one or more persons be appointed Administrator for the purposes of this Act either in addition to or in substitution for the person so found guilty. (2) Where, in accordance with subsection (1), the Court gives directions for the appointment of an Administrator the Court shall make such order as may be necessary or convenient for giving effect to those directions and, thereupon, the property, rights, powers, authorities, functions and discretions vested in the person so found guilty and the liabilities properly incurred by him in the due administration of the estate become and are vested in and transferred to the Administrator so appointed (either jointly or severally as the case may require) without any further conveyance, transfer or assignment.

Mortgages etc. of provision under orders 19 No mortgage, charge, or assignment of any kind whatsoever which is given of or over any provision out of the estate of any deceased person granted by any order of the Court under this Act

and which is given before the order of the Court is made shall be of any force, validity or effect.

Power of Administrator to distribute 20 (1) No action shall lie against the Administrator by reason of his having distributed any part of the estate, if the distribution was properly made without notice of any application or intended application under this Act in respect of the estate. (2) For the purposes of the administration or distribution of any estate or any property no executor or administrator or trustee shall be under any obligation to inquire as to the existence of any person who could claim an interest in the estate or the property by virtue only of the provisions of this Act. (3) No action by any person whose relationship to the deceased is not determined through a legal marriage or adoption shall lie against the Administrator, or any trustee appointed pursuant to this Act, by reason of his having prejudiced any claim of that person under this Act by distributing any part of any estate, or any property, if the distribution was made without notice of any application or intended application by that person under this Act in respect of that estate or property. (4) A person who makes or is entitled to make an application under this Act and who, being of full legal capacity, advises the Administrator in writing that he — (a) consents to a proposed distribution; or (b) does not intend to make any application under this Act that would affect a proposed distribution, shall not bring an action against the Administrator by reason of his having thereafter distributed any part of the estate.

[page 601] (5) Notice to an Administrator of an intended application shall lapse and shall be incapable of being renewed, and the Administrator may act as if he had not received the notice, if, before the expiration of three months after the date on which he first receives notice of the intention to make the application or before the sooner expiration of 12 months from the date on which the Administrator became entitled to administer the estate of the deceased in Western Australia, the Administrator does not receive notice that the application has been made to the Court; but nothing in this subsection shall prevent the subsequent making of the application.

Evidence 21A (1) In this section — ‘statement’ includes any representation of fact whether or not in writing. (2) In any proceedings under this Act, evidence of a statement made by a deceased person is, subject to this section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible. (3) Subject to subsection (4) and unless the Court otherwise orders, where a statement was made by a deceased person during the person’s lifetime otherwise than in a document, no evidence other than direct testimony (including oral evidence, evidence by affidavit and evidence taken before a commissioner or other person authorised to receive evidence for the purpose of the proceedings) by a person who heard or otherwise perceived the statement being made is admissible for the purpose of proving it.

(4) Where a statement was the person’s lifetime while proceeding (being a civil or which evidence is or may statement may be approved Court.

made by a deceased person during giving oral evidence in a legal criminal proceeding or inquiry in be given, or an arbitration), the in any manner authorised by the

(5) Where a statement made by a deceased person during the person’s lifetime was contained in a document, the statement may be proved by the production of the document or, whether or not the document is still in existence, by leave of the Court, by the production of a copy of the document, or of the material part of the document, authenticated in such manner as the Court may approve. (6) Where, under this section, a person proposes to tender, or tenders, evidence of a statement contained in a document, the Court may require that any other document relating to the statement be produced and, in default, may reject the evidence or, if it has been received, exclude it. (7) For the purpose of determining questions of admissibility of a statement under this section, the Court may draw any reasonable [page 602] inference from the circumstances in which the statement was made or from any other circumstances, including, in the case of a statement contained in a document, the form or content of the document. (8) In estimating the weight, if any, to be attached to evidence of a statement tendered for admission or admitted under this

section, regard must be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, including — (a) the recency or otherwise, at the time when the deceased person made the statement, of any relevant matter dealt with in the statement; and (b) the presence or absence of any incentive for the deceased person to conceal or misrepresent any relevant matter in the statement. (9) Subject to subsection (11), where evidence of a statement of a deceased person is admitted under this section, evidence is admissible for the purpose of destroying or supporting the credibility of the deceased person. (10) Subject to subsection (11), where evidence of a statement of a deceased person is admitted under this section, evidence is admissible for the purpose of showing that the statement is inconsistent with another statement made at any time by the deceased person. (11) No evidence of a matter is admissible under subsection (9) or (10) in relation to a statement of a deceased person where, if the deceased person had been called as a witness and had denied the matter in cross-examination, evidence would not be admissible if adduced by the cross-examining party. (12) This section applies notwithstanding the rules against hearsay and notwithstanding that a statement is in such a form that it would not be admissible if given as oral testimony, but does not make admissible a statement of a deceased person which is otherwise inadmissible. (13) The exceptions to the rules against hearsay set out in this

section are in addition to the exceptions to the hearsay rule set out in the Evidence Act 1906.

Regulations 21B The Governor may make regulations prescribing an amount for the purposes of section 7(1)(eb).

Rules 21 The powers to make, alter, and annul rules conferred by Part X of the Supreme Court Act 1935, shall be read as including power to make such rules as may be necessary or convenient for regulating the practice and procedure of the Supreme Court to be adopted for the purposes of this Act, and to alter and annul any such rules.

Index References are to paragraphs Administrator/administratrix see Personal representative Admissibility further evidence on appeal …. 9.4–9.8 testamentary dispositions, deceased’s reasons for — admissibility basis …. 7.12 current position …. 7.14 limitation suggested …. 7.13 Adopted children applicants, as …. 4.45 applications by, approach to …. 4.49 foreign adoptions, recognition …. 4.46 conditions …. 4.46 natural parent’s estate — application right …. 4.47–4.48 Victoria …. 4.45 Adult children as claimants …. 2.9 general observations …. 2.9 Adultery disentitling conduct, as …. 2.38 Advancement/Advancement in life …. 2.2

Affidavit applications procedure defendant’s affidavit …. 11.10 plaintiff’s affidavit …. 11.9 plaintiff’s claim, affidavit supporting …. 11.34 evidence by …. 7.9 Appeals costs security for …. 9.10 successful appeal …. 10.17 unsuccessful appeal …. 10.18 evidence, admission of further …. 9.4 Equity Act 1901 (NSW) …. 9.8 evidence that could be admitted at trial, of …. 9.7 New South Wales …. 9.8 special grounds (outside Tas) …. 9.6 Tasmania …. 9.5 introduction …. 9.1 personal representative costs …. 10.9 duty …. 6.16, 9.9 principles applicable …. 9.3 security for costs …. 9.10 successful, costs on …. 10.17

time limits …. 9.2 rules and, by jurisdiction (Table 9.1) …. 9.2 unsuccessful, costs on …. 10.18 Applicants see also Children of deceased adequate provision deciding what is …. 2.3 determining whether left with …. 2.3 adult children …. 2.9 age, effect of …. 2.32 bankruptcy, effect of …. 2.33 benefits received other than from deceased …. 2.15 benefits/support received, relevance …. 2.15 children see Children; Children of deceased conduct disentitling see Conduct disentitling court, obligation to …. 7.2 death of case digest table (Table 2.5) …. 2.30 claim quantification after …. 2.30 order made, after …. 2.31 deceased, relationship with …. 2.8 estrangement …. 2.10 disability, under litigation guardian’s application where applicant under disability …. 7.28

division into two groups (NSW) …. 2.58 eligibility determination date …. 2.27 early legislation …. 1.6 estrangement from deceased …. 2.10 applicant, caused by …. 2.10 case examples …. 2.10 deceased, caused by …. 2.10 fault on both sides …. 2.10 reconciliation subsequent to …. 2.10 factors warranting application, showing (NSW) …. 2.58 indirect benefit to …. 2.18 lifestyle, deceased’s influence on …. 2.11 moral claim see Moral claim need and moral claim, prioritising …. 2.4 New South Wales …. 2.58 particular classes/categories …. 4.1 adopted children see Children of deceased carers …. 4.70 daughters see Children of deceased ex-nuptial children see Children of deceased grandchildren …. 4.67 infant children see Children of deceased intellectually disabled persons see Intellectually disabled

persons other eligible persons …. 4.66–4.72 parents …. 4.68 same-sex partners …. 4.69 sons see Children of deceased spendthrift …. 4.50 stepchildren see Children of deceased widowers see Widowers widows see Widows property received other than from deceased …. 2.15 Application procedure see Procedure Applications see Claims Assets capital gains tax asset acquired after 19/9/1985 …. 7.23 asset acquired before 20/9/1985 …. 7.22 distribution after application notice …. 6.2 estate, borrowing money to preserve …. 7.18 estate liabilities and, details/value of personal representative’s duty to inform court of …. 6.11 Australia colonial times …. 1.4 family provision legislation introduced …. 1.5

developments since …. 1.6 pension’s effect on claims …. 2.17 suspensory orders …. 8.5 Australian Capital Territory costs in unsuccessful applications …. 10.5 de facto widow applicants …. 4.13 estate distribution, family provision order following …. 2.61 family provision applications procedure …. 11.2, 11.3 judicial interpretation currently …. 11.4 grandchildren as applicants …. 4.67 maintenance provision requirements …. 2.2 parents as applicants …. 4.68 same-sex partners as applicants …. 4.69 stepchildren of deceased as applicants …. 4.43 Bad relationship estrangement …. 2.10 orders made in such cases …. 2.8 Beneficiaries bankrupt, orders where …. 8.20 benefits/support received by, relevance …. 2.15 defined …. 2.19 disability, under litigation guardian required …. 7.29

personal representative’s duties …. 6.14–6.15 protection of entitlement of …. 7.30 financial position, court not told …. 2.19 separate representation — personal representative’s duty …. 6.8 spendthrift …. 2.16 Benefits beneficiary, received by — relevance …. 2.15 indirect …. 2.18 Calderbank letter/offer …. 10.2 Capital gains tax asset acquired after 19/9/1985 …. 7.23 asset acquired before 20/9/1985 …. 7.22 court order’s protection …. 7.25 estate left to charity …. 7.24 sale by personal representative …. 7.21 settlements, in …. 7.20, 7.26 Case circumstances, consideration of …. 3.1 family farms …. 3.3 relevance of older cases …. 2.22 Caveatable interest …. 2.65 Character disentitling see Conduct disentitling Children adopted see Adopted children

applicants see Children of deceased conduct disentitling …. 2.42 conduct not amounting to …. 2.43 deceased, of see Children of deceased second wife/children of first marriage — contestant applicants …. 4.11 case table (Table 4.3) …. 4.11 Children of deceased adopted child applicants …. 4.45 applications by, approach to …. 4.49 foreign adoptions, recognition …. 4.46 foreign adoptions’ recognition conditions …. 4.46 infants — case digest table (Table 4.9) …. 4.25 natural parent’s estate — application right …. 4.47–4.48 Victoria …. 4.45 adult sons as applicants …. 4.32 case digest table (Table 4.12) …. 4.34 large estates …. 4.34 principle applicable …. 4.32 special needs/claims …. 4.32 special needs/claims examples …. 4.33 alcoholic sons as applicants …. 4.35 conduct disentitling see Conduct disentitling definition …. 4.25

divorced daughters as applicants …. 4.30 ex-nuptial child applicants DNA testing …. 4.28 history of legislation …. 4.26 infant …. 4.25 paternity/maternity, proof of …. 4.27 foster children as applicants …. 4.71 case digest table (Table 4.16) …. 4.71 grandchildren as applicants …. 4.67 born after testator’s death …. 4.67 disallowance (Tas) …. 4.67 jurisdictions allowing …. 4.67 moral duty of testator to …. 4.67 infant applicants …. 4.25 aliquot share …. 4.25 case digest table (Table 4.9) …. 4.25 ex-nuptial, relevance of …. 4.25 support entitlement …. 4.25 married daughters as applicants …. 4.31 case digest table (Table 4.11) …. 4.31 provision basis …. 4.31 stepchildren as applicants …. 4.36 ACT, NSW, NT, SA and WA …. 4.43 case digest table (Table 4.13) …. 4.44

claims, approach to …. 4.44 Queensland …. 4.37–4.40 Tasmania …. 4.41 Victoria …. 4.42 Western Australia …. 4.43 unmarried daughters as applicants …. 4.29 case digest table (Table 4.10) …. 4.29 community attitudes …. 4.29 Claims adjudication — court powers, historically …. 1.6 applicant see Applicants application right, relinquishing (NSW) …. 2.48 approach, introduction to …. 2.1 beneficiaries see Beneficiaries benefits, indirect …. 2.18 circumstances’ relevance at date of death/order …. 2.28 community attitudes, effect …. 2.21 implications …. 2.22–2.23 competing …. 2.13 charities and/or strangers, by …. 2.14 need and moral claim …. 2.13 conduct disentitling see Conduct disentitling contracting out …. 2.46–2.47 New South Wales …. 2.48

New Zealand …. 2.47 South Australia …. 2.47 deceased see Deceased determination, two-stage process of …. 2.3 factors considered in first stage …. 2.3 jurisdictional question …. 2.3 second stage …. 2.3 second stage, case tables’ use in …. 2.3 eligibility determination date …. 2.27 factors warranting application, showing (NSW) …. 2.58 financial agreements, — effect on applications …. 2.63 forfeiture clauses …. 2.46, 2.49 immoral/illegal act, based on …. 2.60 intestate …. 2.1 jurisdictional question of claim determination …. 2.3 legislation interpretation …. 2.24 judicial commentary …. 2.26 maintenance, ‘adequate’ and ‘proper’ — provision requirement …. 2.2 provisions in each jurisdiction …. 2.2 moral claim …. 2.6 applicant and deceased’s relationship …. 2.8 applicant’s conduct, relevance in reducing …. 2.12

deceased’s estate, building up …. 2.7 need and, prioritising …. 2.4 use of term …. 2.6 need …. 2.5 moral claim and, prioritising …. 2.4 older cases, relevance …. 2.22 ordinary claims application procedure (SA) …. 11.26 pension’s effect on …. 2.15, 2.17 provision made during lifetime …. 2.15 public policy …. 2.6 quantification after applicant’s death …. 2.30 relevance of older cases …. 2.22 rules — inflexibility avoidance …. 2.23 small claims application procedure (SA) …. 11.26 small estate, refusal reason …. 3.8 stepchildren, by …. 4.36 two-stage process of determination …. 2.3 factors considered in first stage …. 2.3 jurisdictional question …. 2.3 second stage …. 2.3 second stage, case tables’ use in …. 2.3 will rewriting …. 2.25 ‘wise and just’ test …. 2.20 Conditional orders …. 8.9

examples …. 8.9 Conduct disentitling adultery …. 2.38 children, by …. 2.42 non-disentitling misconduct …. 2.43 community attitudes, relevance of …. 2.35 conduct not amounting to …. 2.41 child, by …. 2.42 desertion …. 2.39 distribution consent (Qld) …. 2.45 legislation …. 2.34 onus of proof …. 2.44 separation …. 2.40 what constitutes …. 2.36 widows and widowers, by …. 2.37 Consent orders …. 8.8 Consideration see Full valuable consideration Construction of will …. 7.4 Contract to leave property by will …. 7.5 Costs appeals, on successful …. 10.17 unsuccessful …. 10.18 application dismissal arising from technical question …. 10.15

Australian/New Zealand approaches …. 10.1 Calderbank letter/offer …. 10.2 litigation guardian, of …. 10.22 notional estate provisions (NSW) …. 2.56 personal representative, of …. 10.21 Public Trustees, unsuccessful applications by …. 10.19 security for appeals, in …. 9.10 small estates — dismissal with …. 3.8 successful applications …. 10.2 orders …. 10.2 taxation on solicitor–client basis …. 10.20 technical question, where application dismissal arises from …. 10.15 unsuccessful applications …. 10.3 Australian Capital Territory …. 10.5 New South Wales …. 10.6 Northern Territory …. 10.7 orders …. 10.4 Public Trustees, by …. 10.19 Queensland …. 10.8 South Australia …. 10.4, 10.9 Tasmania …. 10.10 Victoria …. 10.3, 10.11

Western Australia …. 10.12 where applicant dies before trial …. 10.16 Criminal record …. 2.42 Crisp orders …. 2.66 Daughters conduct disentitling …. 2.42 conduct not amounting to …. 2.43 divorced daughters as applicants …. 4.30 married daughters as applicants …. 4.31 case digest table (Table 4.11) …. 4.31 provision basis …. 4.31 unmarried daughters as applicants …. 4.29 case digest table (Table 4.10) …. 4.29 community attitudes …. 4.29 De facto spouses see also Spouses widowers …. 4.24 widows …. 4.12 Australian Capital Territory …. 4.13 case digest table (Table 4.6) …. 4.22 contingency fund amount table (Table 4.5) …. 4.22 New South Wales …. 4.14 Northern Territory …. 4.15 Queensland …. 4.16–4.17

South Australia …. 4.18 successful applications …. 4.22 Tasmania …. 4.19 Victoria …. 4.20 Western Australia …. 4.21 Death applicant, of case digest table (Table 2.5) …. 2.30 claim quantification after …. 2.30 effect …. 2.29 order made, after …. 2.31 deceased see Deceased testator/testatrix see Deceased Deceased applicant, relationship with …. 2.8 estrangement (Tables 2.1–2.4) …. 2.10 applicant’s lifestyle, influence on …. 2.11 carers of, as applicants …. 4.70 child of see Children of deceased circumstances’ relevance at date of death/order …. 2.27 estrangement from applicant …. 2.10 applicant, caused by (Table 2.1) …. 2.10 deceased, caused by (Table 2.2) …. 2.10 fault on both sides (Table 2.3) …. 2.10

reconciliation subsequent to (Table 2.4) …. 2.10 evidence of reasons, relevance …. 7.15 family provision order, jurisdiction for making …. 7.3 grandchildren of, as applicants …. 4.67 moral duty of …. 2.6 parents of, as applicants …. 4.68 same-sex partners of, as applicants …. 4.69 testamentary dispositions admissibility basis …. 7.12 current position …. 7.14 evidence of reasons for …. 7.11 limitation suggested …. 7.13 relevance of reasons …. 7.15 ‘wise and just’ test …. 2.20 Desertion disentitling conduct, as …. 2.39 Disability applicant under litigation guardian’s application …. 7.28 beneficiaries under litigation guardian required …. 7.29 personal representative’s duties …. 6.15 protection of entitlement of …. 7.30 intellectual see Intellectually disabled persons

party, of …. 7.27 persons under inadequately provisioned, personal representative’s duty when …. 6.14 Discovery application procedure, in against person not party and before action (SA) …. 11.29 interrogatories and (NSW, NT, Tas) …. 11.8, 11.18, 11.30 South Australia …. 11.28 Disentitlement see Conduct disentitling Dislike of spouse, by deceased …. 7.15 Dismissal strong competing claims, because of …. 3.6 Distribution asset distribution after application notice …. 6.1 estate family provision order following …. 2.61 property distribution — personal representative’s duty (NSW) …. 6.3 transmission applications, effect of …. 5.17 when …. 5.16 estate property distribution (NSW) …. 6.3 extensions of time, after …. 5.2 personal representative’s duty not to distribute, exceptions to

…. 6.5 Divorce see also Marriage former (divorced) wife applicants …. 4.8 ‘receiving/entitled to receive’ maintenance …. 4.9 relevant considerations …. 4.10 settlements — effect on applications …. 7.16 Estates assets, borrowing money to preserve …. 7.18 assets/liabilities, details/value of personal representative’s duty to inform court of …. 6.11 charity, left to — capital gains tax …. 7.24 distribution family provision order following …. 2.61 property distribution — personal representative’s duty (NSW) …. 6.3 transmission applications, effect of …. 5.17 when …. 5.16 donatio mortis causa (Qld) …. 2.59 incidence of order current position …. 8.15 estate share, applying to particular …. 8.16 historical perspective …. 8.14 large …. 3.4 adult son applicants …. 4.32

approach, recent change …. 3.8 before and after Gregory v Hudson (Tables 3.4 and 3.5) …. 3.7 case digest tables (Tables 3.4 and 3.5) …. 3.7 contingencies allowed for …. 3.5 need …. 3.4 order amounts …. 3.7 notional estate provisions (NSW) see Notional estate provisions (NSW) property distribution personal representative’s duty (NSW) …. 6.3 share of, order applying to particular …. 8.16 small …. 3.8 claim refusal reason …. 3.8 costs, dismissal with …. 3.8 insufficient to meet claims …. 3.8 wills and estates law see Family provision Estrangement between applicant and deceased allegations …. 2.10 applicant, caused by …. 2.10 case examples (Table 2.1) …. 2.10 cases 1900 to 2000 …. 2.10 since 2000 …. 2.10 deceased, caused by …. 2.10

case examples (Table 2.2) …. 2.10 fault on both sides …. 2.10 case examples (Table 2.3) …. 2.10 provision, effect on …. 2.10 reconciliation subsequent to …. 2.10 case examples (Table 2.4) …. 2.10 sexual abuse allegations …. 2.10 Evidence admissibility basis …. 7.12 current position …. 7.14 limitation suggested …. 7.13 affidavit, by …. 7.9 appeal to admit further …. 9.4 Equity Act 1901 (NSW) …. 9.8 evidence that could be admitted at trial, of …. 9.7 New South Wales …. 9.8 special grounds (outside Tas) …. 9.6 Tasmania …. 9.5 application, nature of evidence filed in (NSW) defendant, procedure for …. 11.10 plaintiff, procedure for …. 11.9 deceased’s reasons, relevance …. 7.15 medical …. 7.10 testamentary dispositions, deceased’s reasons for …. 7.11

Executor/executrix see Personal representative Family farms …. 3.3 case digest table (Table 3.3) …. 3.3 sons …. 3.3 table of typical orders (Table 3.2) …. 3.3 Western Australian cases …. 3.3 Family provision application procedure see Procedure application right, relinquishing (NSW) …. 2.48 assignment prohibition …. 7.33 charge, prohibition of …. 7.33 claims see Claims conduct disentitling see Conduct disentitling financial agreements — effect on applications …. 2.63 introduction …. 1.1 legislation interpretation …. 2.24 judicial commentary …. 2.26 miscellaneous considerations …. 7.1 mortgage prohibition …. 7.33 order, jurisdiction for making …. 7.3 origins …. 1.2 rules — inflexibility avoidance …. 2.23

settlements see Settlements Farms see Family farms Full valuable consideration de facto widows/partners …. 4.12 notional estate …. 2.51 Gifts donatio mortis causa (Qld) …. 2.59 Grandchildren applicants, as …. 4.67 born after testator’s death …. 4.67 disallowance (Tas) …. 4.67 jurisdictions allowing …. 4.67 moral duty of testator to …. 4.77 Gregory v Hudson large estate cases before/since …. 3.7 Guardian ad litem see Litigation guardian Health problems medical evidence …. 7.10 History of family provision …. 1.1, 1.7 applicants’ eligibility, broadening …. 1.6 Australia in colonial times …. 1.4 claims adjudication — court powers …. 1.6

developments since 1900 …. 1.6 English law …. 1.2–1.3 ex-nuptial child applicants — legislation history …. 4.26 family provision legislation, first …. 1.5 Australian introduction …. 1.5 developments since …. 1.6 United Kingdom, introduced to …. 1.5 injustice, first recognition of …. 1.5 intestacy …. 3.2 New Zealand colonial conditions …. 1.4 developments since 1900 …. 1.6 family provision legislation, first …. 1.5 initiative of 1900 …. 1.5, 1.7 Testator’s Family Maintenance Act 1900 …. 1.5 origins …. 1.2 Roman law …. 1.2 Testator’s Family Maintenance Act 1900 (NZ) …. 1.5 Illegal conduct engagement in …. 2.41 Illegality application based on immoral/illegal act …. 2.60 public policy …. 2.60

Infants see also Children of deceased applicants, as …. 4.25 aliquot share …. 4.25 case digest table (Table 4.9) …. 4.25 ex-nuptial, relevance of …. 4.26 support entitlement …. 4.26 Intellectually disabled persons administrator payment (Vic) …. 4.62 Alzheimer’s disease …. 4.60 applicants, as …. 4.51 case digest table (Table 4.14) …. 4.65 cerebral palsy …. 4.59 Down’s syndrome …. 4.58 institutionalised persons …. 4.52 1940s, attitude until …. 4.52 lump sums …. 4.65 provisions covering …. 4.52 recent decisions …. 4.52 litigation guardian’s application where applicant under disability …. 7.28 persons living in the community …. 4.54 case examples …. 4.64 procedural steps …. 4.55 quantum …. 4.56

schizophrenia …. 4.57 successful applications (Table 4.14) …. 4.65 Interrogatories application procedure, in discovery and (NSW, NT) …. 11.8, 11.18 South Australia …. 11.28 Intestacy …. 3.2 case digest table (Table 3.1) …. 3.2 claims …. 2.1 distribution, personal representative’s duty to uphold …. 6.6 fictional will …. 3.2 history …. 3.2 Jurisdiction family provision order, making …. 7.3 question (claim determination stage) …. 2.3 Large estates see Estates Legislation applicant eligibility — early legislation …. 1.6 conduct disentitling applicant to provision …. 2.34 family provision legislation introduced …. 1.5 developments since …. 1.6 interim maintenance, legislation addressing …. 8.4 interpretation …. 2.24

judicial commentary …. 2.26 Litigation guardian application where applicant under disability …. 7.28 costs …. 10.22 duties …. 7.31 remuneration …. 7.32 requirement for, where beneficiaries under disability …. 7.29 role …. 7.28 Lump sum calculation methods …. 2.62 institutionalised disabled persons …. 4.52 Maintenance see also Family provision ‘adequate’ and ‘proper’, provision requirement …. 2.2 large estates …. 3.4 provisions in each jurisdiction …. 2.2 interim, legislation addressing …. 8.4 ‘receiving/entitled to receive’ — former wives …. 4.9 Marriage see also Divorce; Spouses ex-nuptial children as applicants DNA testing …. 4.28 history of legislation …. 4.26 infant …. 4.25

paternity/maternity, proof of …. 4.27 married daughters as applicants …. 4.31 case digest table (Table 4.11) …. 4.31 provision basis …. 4.31 pre-nuptial agreements, binding family provision applications, effect on …. 2.63 remarriage — effect on spouse’s claim current position …. 4.5 historical background …. 4.4 Maternity DNA testing …. 4.28 ex-nuptial child applicants and …. 4.26 proof …. 4.27 Mediation pre-trial (NSW and Qld) …. 7.34 Medical evidence health problems, of …. 7.10 Moral claim …. 2.6 applicant and deceased’s relationship …. 2.8 applicant’s conduct, relevance in reducing …. 2.12 competing claims, consideration in …. 2.13 deceased’s estate, building up …. 2.7 deceased’s influence on applicant’s lifestyle …. 2.11 need and, prioritising …. 2.4

use of term …. 2.6 Moral duty or obligation see also Moral claim deceased, of …. 2.6 second/subsequent wife, to …. 4.11 grandchildren, duty of testator toward …. 4.67 born after testator’s death …. 4.67 use of term …. 2.6 Need …. 2.5 competing claims, consideration in …. 2.13 large estates …. 3.4 moral claim and, prioritising …. 2.4 New Zealand …. 2.5 New South Wales applicants carers as …. 4.70 de facto widows as …. 4.14 dividing …. 2.58 eligible, others …. 4.72 foster children as …. 4.71 grandchildren as …. 4.67 limiting …. 2.58 parents as …. 4.68 same-sex partners as …. 4.69

stepchildren as …. 4.43 Calderbank letter/offer …. 10.2 carers as applicants …. 4.70 eligibility requirements …. 4.73 contracting out …. 2.46 costs in unsuccessful applications …. 10.6 de facto widow applicants …. 4.14 estate orders — large amounts in large estate cases …. 3.6–3.7 estate property distribution personal representative’s duty …. 6.3 evidence, admission of further on appeal …. 9.8 Equity Act 1901 …. 9.8 factors warranting application, showing …. 2.58 Family Provision Act 1982 (repealed) …. 2.58 family provision application right, relinquishing …. 2.48 family provision applications procedure …. 11.5 discovery and interrogatories …. 11.8 draft documents …. 11.12 evidence to be filed, nature of …. 11.9–11.10 hearing, procedure subsequent …. 11.11 nature of procedure …. 11.7 Supreme Court applications …. 11.6 foster children as applicants …. 4.71

grandchildren as applicants …. 4.67 interim orders …. 8.2–8.3 maintenance provision requirements …. 2.2 mediation before trial …. 7.34 notional estate provisions see Notional estate provisions (NSW) parents as applicants …. 4.68 same-sex partners as applicants …. 4.69 claim bases …. 4.69 stepchildren of deceased as applicants …. 4.36 Succession Act 2006 …. 2.52, 2.57 time extension grant/refusal — relevant factors …. 5.12 New Zealand claim, pension’s effect on …. 2.17 colonial conditions …. 1.4 contracting out …. 2.46 developments since 1900 …. 1.6 family provision legislation, first …. 1.5 grandchildren as applicants …. 4.67 initiative of 1900 …. 1.5, 1.7 need …. 2.5 need and moral claim, prioritising …. 2.4 suspensory orders …. 8.5–8.7 Testator’s Family Maintenance Act 1900 …. 1.5

Next friend see Litigation guardian Northern Territory costs in unsuccessful applications …. 10.7 de facto widow applicants …. 4.15 estate distribution, family provision order following …. 2.61 family provision application procedure …. 11.13–11.14 appearance, proceedings after …. 11.17 default of appearance, proceedings in …. 11.16 discovery and interrogatories …. 11.18 exceptional cases …. 11.19 hearing …. 11.20 originating motion, application by …. 11.15 maintenance provision requirements …. 2.2 parents as applicants …. 4.68 same-sex partners as applicants …. 4.69 stepchildren of deceased as applicants …. 4.43 Notional estate provisions (NSW) …. 2.50 costs …. 2.56 distribution from deceased’s estate, where …. 2.52 estate property held by representative or distributed …. 2.53 law reform …. 2.57 out of time, application brought …. 2.55 preconditions common …. 2.53 ‘relevant property transaction’, where …. 2.51

Succession Act 2006 s 82 …. 2.53 Orders applicant’s death after order made …. 2.31 bankrupt beneficiary, where …. 8.20 codicil, made by not taking effect as if …. 8.13 taking effect as if …. 8.12 conditional …. 8.9 examples …. 8.9 consent …. 8.8 costs, for …. 10.2, 10.4 example orders …. 10.2 standard order …. 10.2 successful applications, in …. 10.2 technical question, where application dismissal arises from …. 10.15 unsuccessful applications, in …. 10.4 effect of …. 8.11 legacy, as …. 8.12 legacy, as not …. 8.13 estate distribution, family provision order following …. 2.61 estate — large amounts in large estate cases (NSW) …. 3.7 family provision order, jurisdiction for making …. 7.3

final family provision orders (Vic) …. 11.36 incidence current position …. 8.15 estate share, applying to particular …. 8.16 historical perspective …. 8.14 interim …. 8.2 interim maintenance, legislation addressing …. 8.4 introduction …. 8.1 operation postponement …. 8.10 suspensory court’s power to make …. 8.5–8.7 origins …. 8.5 variation …. 8.17 jurisdictions, positions of — table (Table 8.1) …. 8.17 New South Wales …. 8.18 periodic payment reduction/cancellation …. 8.19 Origins of family provision law …. 1.2 Parties additional, procedure (WA) …. 11.45 disability of …. 7.27 discovery against person not, and before action …. 11.29 Paternity DNA testing …. 4.28

ex-nuptial child applicants and …. 4.26 proof …. 4.27 Pension claim, effect on …. 2.17 Australia, in …. 2.17 New Zealand, in …. 2.17 Personal representative costs of …. 10.21 counsel for, duty of …. 6.10 duties …. 6.1 appeal, on …. 6.16, 9.9 application notice after time limit …. 6.4 asset distribution after application notice …. 6.2 assist court generally …. 6.7 beneficiaries under disability, where …. 6.15 different capacities, acting in …. 6.9 disabled persons left without provision …. 6.14 duty not to distribute, exceptions to …. 6.5 embarrassment of court, avoiding …. 6.2 estate property distribution (NSW) …. 6.3 estate’s assets/liabilities, informing court of details/value …. 6.11 intestacy distribution, upholding …. 6.6 multiple applications …. 6.13

persons under disability inadequately provisioned, when …. 6.14 separate representation, as to …. 6.8 small estates, in …. 6.12 will, upholding …. 6.6 sale by, capital gains tax and …. 7.21 Persons under a disability inadequately provisioned, personal representative’s duty when …. 6.14 Persons with an intellectual disability see Intellectually disabled persons Pleadings …. 11.19 Pre-nuptial agreements effect on family provision applications …. 2.63 financial agreements, as …. 2.63 Procedure additional parties …. 11.45 appearance, proceeding after …. 11.17 appearance default proceeding …. 11.16 application mode …. 11.40 application procedure …. 11.3, 11.22 applications compromises …. 11.35 Australian Capital Territory …. 11.2 application procedure …. 11.3 judicial interpretation currently …. 11.4

claims ordinary …. 11.26 small …. 11.26 compromises of applications …. 11.35 defendant, representative …. 11.46 defendant’s affidavit …. 11.10 directions, summons for …. 11.41 directions order form …. 11.42–11.44 discovery and interrogatories …. 11.8, 11.18, 11.27–11.28 discovery against person not party and before action …. 11.29 final orders …. 11.36 hearing …. 11.20 subsequent to …. 11.11 introduction …. 11.1 judicial interpretation of, current …. 11.4 jurisdictional issue …. 11.21 minor procedural rules …. 11.47 nature of …. 11.7 evidence to be filed …. 11.9–11.10 New South Wales …. 11.5 discovery and interrogatories …. 11.8 draft documents …. 11.12 evidence to be filed, nature of …. 11.9–11.10

hearing, procedure subsequent …. 11.11 nature of procedure …. 11.7 Supreme Court applications …. 11.6 Northern Territory …. 11.13–11.14 appearance, proceedings after …. 11.17 default of appearance, proceedings in …. 11.16 discovery and interrogatories …. 11.18 exceptional cases …. 11.19 hearing …. 11.20 ordinary claims …. 11.26 originating motion, application by …. 11.15 plaintiff’s affidavit …. 11.9 plaintiff’s claim, affidavit supporting …. 11.34 pleadings …. 11.19 preliminary matters …. 11.31 Queensland …. 11.22 District/Supreme Courts’ jurisdictions …. 11.21 records, disclosure/inspection of …. 11.23 representative defendant …. 11.46 rules, minor …. 11.47 small claims …. 11.26 South Australia …. 11.24 discovery …. 11.27 discovery against person not party and before action ….

11.29 interrogatories …. 11.28 ordinary claims …. 11.26 small claims …. 11.26 Supreme Court, application in …. 11.25 statutory requirements (WA) …. 11.39 summons for directions …. 11.41 Supreme Court, application made in …. 11.6, 11.25 Tasmania …. 11.30 time extension application …. 11.37 Victoria …. 11.31 affidavit supporting plaintiff’s claim …. 11.34 compromises of family provision applications …. 11.35 final family provision orders …. 11.36 preliminary matters …. 11.31 Supreme or County Courts, application to …. 11.32 time extension application …. 11.37 Western Australia …. 11.38 additional parties …. 11.45 Common Form 10 …. 11.43 Common Form 11 …. 11.44 directions order form …. 11.42 directions summons …. 11.41 minor procedural rules …. 11.47

mode of application …. 11.40 representative defendant …. 11.46 statutory requirements …. 11.39 Property donatio mortis causa (Qld) …. 2.58 estate property distribution (NSW) personal representative’s duty …. 6.3 provision determination property applicant received other than from deceased …. 2.14 will, contract to leave by …. 7.5, 7.8 Public policy …. 2.60 Queensland applicant’s death — effect on claim …. 2.28 applicants, other eligible …. 4.74 costs in unsuccessful applications …. 10.8 de facto widow applicants deceased died before 1/4/2003 …. 4.16 deceased died on/after 1/4/2003 …. 4.17 distribution consent disentitles …. 2.44 donatio mortis causa …. 2.58 family provision application procedure …. 11.22

District/Supreme Courts’ jurisdictions …. 11.21 records — disclosure/inspection …. 11.23 formal time limitations, caveat to …. 5.4 foster children as applicants …. 4.71 grandchildren as applicants …. 4.67 maintenance provision requirements …. 2.2 mediation before trial …. 7.34 parents as applicants …. 4.68 same-sex partners as applicants …. 4.69 stepchildren of deceased as applicants …. 4.37–4.40 current position …. 4.39–4.40 historical background …. 4.37–4.38 time extension grant/refusal — relevant factors …. 5.12 Representation personal see Personal representative separate personal representative’s duty …. 6.8 Same-sex partners applicants, as …. 4.69 case digest table (Table 4.15) …. 4.69 Security for costs appeals, in …. 9.10

Separation disentitling conduct, as …. 2.39 Settlements capital gains tax …. 7.20, 7.26 asset acquired after 19/9/1985 …. 7.23 asset acquired before 20/9/1985 …. 7.22 court order’s protection …. 7.25 estate left to charity …. 7.24 sale by personal representative …. 7.21 considerations …. 7.17 divorce — effect on applications …. 7.16 revenue implications …. 7.18 stamp duties …. 7.19 Sexual abuse estrangement cases …. 2.9 Small estates see Estates Sons adult sons as applicants …. 4.32 case digest table (Table 4.12) …. 4.34 large estates …. 4.34 principle applicable …. 4.32 special needs/claims …. 4.32 special needs/claims examples …. 4.33 alcoholic sons as applicants …. 4.35

conduct disentitling …. 2.41 conduct not amounting to …. 2.42 ‘family farm’ cases …. 3.3 South Australia applicants, other eligible …. 4.74 costs in unsuccessful applications …. 10.4, 10.9 de facto widow applicants …. 4.18 estate distribution, family provision order following …. 2.60 family provision application procedure …. 11.24 discovery …. 11.27 discovery against person not party and before action …. 11.29 interrogatories …. 11.28 ordinary claims …. 11.26 small claims …. 11.26 Supreme Court, application in …. 11.25 grandchildren as applicants …. 4.67 maintenance provision requirements …. 2.2 parents as applicants …. 4.68 same-sex partners as applicants …. 4.69 stepchildren of deceased as applicants …. 4.43 time extension grant/refusal — relevant factors …. 5.14 Special Disability Trust …. 4.55 Spendthrifts

applicant …. 4.50 beneficiary …. 2.15 Spouses see also De facto spouses; Marriage; Widowers; Widows dislike of, by deceased …. 7.15 remarriage — effect on claim current position …. 4.6 historical background …. 4.4–4.5 Stamp duties …. 7.19 Stepchildren applicants, as …. 4.36 ACT, NSW, NT and SA …. 4.43 case digest table (Table 4.13) …. 4.44 claims, approach to …. 4.44 Queensland …. 4.37–4.40 Tasmania …. 4.41 Victoria …. 4.42 Western Australia …. 4.36 Succession law see Family provision Summary dismissal …. 2.64 Suspensory orders court’s power to make …. 8.5–8.7 origins …. 8.5

Tasmania costs in unsuccessful applications …. 10.10 de facto widow applicants …. 4.19 evidence, admittance of further …. 9.5 family provision application procedure …. 11.30 grandchildren as applicants …. 4.67 maintenance provision requirements …. 2.2 parents as applicants …. 4.68 same-sex partners as applicants …. 4.69 stepchildren of deceased as applicants …. 4.41 Taxation capital gains tax see Capital gains tax solicitor–client basis, on — costs …. 10.20 Testator/testatrix see Deceased Time application — when made …. 5.8 two views …. 5.8 estate — when distributed …. 5.16 extension see Time extension limits see Time limits transmission applications, effect of …. 5.17 time begins to run, when …. 5.6 Time extension …. 5.7 application procedure …. 11.37

court’s discretion guidelines …. 5.7 family provision application procedure, in (Vic) …. 11.33 granting …. 5.9 circumstances where likely …. 5.9 refusing …. 5.10 circumstances where likely …. 5.10 relevant factors …. 5.11 NSW and Qld, in …. 5.12 South Australia, in …. 5.14 Victoria, in …. 5.13 Western Australia, in …. 5.15 solicitor’s delay …. 5.18 Time limits appeals, on …. 9.2 rules and time limits by jurisdiction (Table 9.1) …. 9.2 application notice after duty of personal representative …. 6.4 current position of jurisdictions — table (Table 5.1) …. 5.3 formal, caveat to (Qld) …. 5.4 introduction …. 5.1 registrar, notice to (Vic) …. 5.5 Tutor see Litigation guardian Variation of orders …. 8.17

jurisdictions, positions of table (Table 8.1) …. 8.17 NSW …. 8.18 periodic payment reduction/cancellation …. 8.19 Victoria adopted children as applicants …. 4.45 applicants — eligibility decided by court …. 4.1 applicants, other eligible …. 4.74 applications’ multi-step process …. 2.3 carers as applicants …. 4.73 costs in unsuccessful applications …. 10.3, 10.11 de facto widow applicants …. 4.20 family provision application procedure …. 11.33 affidavit supporting plaintiff’s claim …. 11.34 compromises of applications …. 11.35 final family provision orders …. 11.36 preliminary matters …. 11.31 Supreme or County Courts, application to …. 11.32 time extension application …. 11.37 grandchildren as applicants …. 4.67 intellectually disabled applicants administrator, payment to …. 4.62 maintenance provision requirements …. 2.2 parents as applicants …. 4.68 same-sex partners as applicants …. 4.69

stepchildren of deceased as applicants …. 4.42 time extension grant/refusal — relevant factors …. 5.13 time limits registrar, notice to (Vic) …. 5.5 Western Australia de facto widow applicants …. 4.21 estate distribution, family provision order following …. 2.60 ‘family farm’ cases …. 3.3 family provision application procedure …. 11.38 additional parties …. 11.45 Common Form 10 …. 11.43 Common Form 11 …. 11.44 directions order form …. 11.42 directions summons …. 11.41 minor procedural rules …. 11.47 mode of application …. 11.40 representative defendant …. 11.46 statutory requirements …. 11.39 grandchildren as applicants …. 4.67 maintenance provision requirements …. 2.2 parents as applicants …. 4.68 stepchildren of deceased as applicants …. 4.36 time extension grant/refusal — relevant factors …. 5.15

Widowers see also Spouses; Widows case digest table (Table 4.7) …. 4.23 conduct disentitling …. 2.36 costs in unsuccessful applications …. 10.12 de facto …. 4.24 case digest table (Table 4.8) …. 4.24 historical development …. 4.23 treatment by courts/laws …. 4.23 widows, comparison to …. 4.23 Widows see also Spouses; Widowers categories …. 4.2 classic/archetypical …. 4.3 case digest table (Table 4.1) …. 4.3 claim, importance of …. 4.3 provision, factors affecting …. 4.3 conduct disentitling …. 2.36 de facto …. 4.12 Australian Capital Territory …. 4.13 case digest table (Table 4.6) …. 4.22 contingency fund amount table …. 4.22 New South Wales …. 4.14 Northern Territory …. 4.15 Queensland …. 4.16–4.17 South Australia …. 4.18

successful applications …. 4.22 Tasmania …. 4.19 Victoria …. 4.20 Western Australia …. 4.21 former (divorced) wives …. 4.8 ‘receiving/entitled to receive’ maintenance …. 4.9 relevant considerations …. 4.10 remarriage — effect on spouse’s claim current position …. 4.6 historical background …. 4.4–4.5 second/subsequent wives …. 4.11 case digest table (Table 4.4) …. 4.11 children of first marriage and …. 4.11 children/second wife contest cases table (Table 4.3) …. 4.11 separation — effect on claim …. 4.7 case digest table (Table 4.2) …. 4.7 Wills construction in applications …. 7.4 difficulties …. 7.4 fictional, as intestacy concept …. 3.2 personal representative’s duty to uphold …. 6.6 property, contract to leave by …. 7.5, 7.8 ‘beneficiary’ theory …. 7.6–7.7 ‘creditor’ theory …. 7.6

rewriting, court powers related …. 2.24 testamentary dispositions admissibility basis …. 7.12 current position …. 7.14 deceased’s reasons for …. 7.11 limitation suggested …. 7.13 relevance of reasons …. 7.15 Wills and estates law see Family provision

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Related LexisNexis Titles Sundar, V; Rowland, C; Bailey, P, Testamentary Trusts : Strategies and Precedents, 2nd edition 2016 Birtles, C; Neal, R, Hutley’s Australian Wills Precedents, 9th edition 2016 Perkins, M; Monahan, R, Estate Planning: A Practical Guide for Estate and Financial Services Professionals, 4th edition 2015 Williams R; McCullough, S, Statutory Will Applications: A Practical Guide, 2013 Croucher, R; Vines, P, Succession: Families, Property and Death, 4th Edition 2013