Family provision in Australia

Description

Dedication Full Title Copyright Publisher’s Note Preface Contributing Editors Table of Cases Table of Statutes Abbreviations Book References Table of Contents 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 3 Approach in Particular Circumstances 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 10 Deceased’s maintenance or support of the proposed 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