Date: Sep 06, 2011
Document Type: Article

If the deceased died after 1 March 2009, proceedings for a family provision orders are commenced pursuant to the Succession Act 2009.

The Family Provision Act 1982 was replaced by the Succession Act 2009 on 1 March 2009.

A claimant has 12 months from the date of death in which to commence proceedings for a family provision order.

Most family provision claims are commenced in the Supreme Court of NSW which where matters are compulsorily directed to a mediation hearing usually before an experienced Registrar.

An application is commenced by filing a Summons in the Equity Division of the Supreme Court.

The usual orders sought is

  • an order pursuant to Section 59 of the Succession Act 2006 (NSW) that provision (or further provision) be made out of the estate of the deceased for the education, maintenance and advancement in life of the plaintiff 9ther person seeking the order).
An order cannot be made against the estate unless and until a grant either of probate or letters of administration has been made.

In some cases, a prospective plaintiff may need to seek a grant for the purpose of a claim. If the court is satisfied that it is proper to do so, it will grant administration for the purpose only of permitting the application concerned to be dealt with.

If the claim is made more than 12 months from the date of the deceased’s death, an order extending time for applying should be included in the claim for principal relief. In those circumstances, the usual order sought is:

  • an order that the time for making this application be extended up to and including the date of filing this Summons.

A Plaintiff should not assume that time will always be extended – always seek legal advice at the earliest opportunity.

The Summons usually joins as defendant the administrator(s) or executor(s) of the deceased’s Will.

If required directions may be made at any stage or the proceedings for persons to be added or substituted as parties or for notice of the proceedings to be served on any person in addition to or instead of the named defendant(s).

A person named as executor or administration of the Will who intends making a claim for Family Provision Act Relief cannot be both plaintiff and defendant and will need to renounce his/her appointment as executor in order to commence family provision proceedings.

The defendant, provided he or she acts reasonably and pursuant to reasonable legal advice, is indemnified for his/her costs of defending a family provision act claim.

In most but not all cases, a successful plaintiff will obtain an order that the plaintiff’s costs be paid out of the estate. Those costs are calculated on a solicitor-client basis and cover some but not all of the plaintiff’s costs.

Further information

Contact our Managing Partner, Dominic Wilson on (02) 8268 4000 or by email at . Dominic has a friendly manner and is highly experienced in this area of the law. 

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