David Jay comments on Better Practice in the NSW Supreme Court Family Provision List

By David Jay, Counsel, 6 St. James' Hall Chambers

In mid 2015, Justice Hallen delivered a tutorial to practitioners on practice in the Family Provision List, entitled Current Issues from the Perspective of the Bench. It was part of the series Estate Administration Tutorial Series: Probate, Protective and Family Provision Jurisdictions – a joint initiative of the Supreme Court of NSW, the NSW Bar Association and the Law Society of NSW.

The purpose of Justice Hallen’s tutorial on the Family Provision List was practical rather than academic, and gave an excellent insight as to how practitioners can ensure their matters in the List are dealt with efficiently and cost effectively.

In my view, the observations made by his Honour are highly instructive and justify a wider audience. I have collated his Honour’s observations under the following headings for ease of reference.

List Procedure

The Family Provision List (the List) has operated for more than two years. It is operating well but, as with most areas in litigation, there is room for improvement.

The first return date is usually four to five weeks after the summons is filed. That should be sufficient time for practitioners to file the affidavit in support of the summons, the notice of eligible persons and the affidavit as to costs (see Supreme Court of NSW Practice Note SC Eq 7 ¶ 6). In the event that those documents have not been finalised practitioners should expect a polite enquiry from the Bench as to why that has not occurred.

If you have retained counsel or a city agent then they will be expected to inform the Court of the status of those documents, any reasons for delay and the amount of time required to complete the plaintiff’s documents.

There are two forms of standard directions available at the Bar table. The short form is for small estates (less than $500,000) and are drafted to avoid the need for copious discovery and inspection.

The Court aspires to have most matters set down for mediation within three months of the summons being filed with a view to allocating a hearing date within 12 months.

Affidavits

Affidavits are no longer filed in the Registry. Justice Hallen will accept originals of affidavits by delivery to his chambers prior to the first directions hearing and they will be marked as filed in court. Providing the affidavits permits his Honour to familiarize himself with the matter before the first return date.

The administrator’s legal representatives may consider attending to the preparation of the formal affidavits (Practice Note SC Eq 7 ¶ 9.1 and 9.2) before the first return date in order to save time later.  

Unless there is a compelling reason, for instance disentitling conduct is put in issue, the administrator is not encouraged to prepare an affidavit in reply (Practice Note SC Eq 7 ¶ 9.3) prior to the mediation. It was his Honour’s observation (no doubt also informed by years of experience practicing in the jurisdiction) that the affidavit in reply is often one of the more expensive affidavits to prepare and can have a propensity to amplify animosity between the parties.

If those costs can be avoided prior to mediation then practitioners should give close consideration to following that course. His Honour emphasized that it is not a final view in all matters, and it will be appropriate to prepare the affidavit in reply in certain cases.

Costs

If the plaintiff’s estimate of costs and disbursements up to and including the mediation (Practice Note SC Eq 7 ¶ 6(c)) are above $25,000 then, again, the practitioner will be asked for an explanation. The reasoning behind his Honour’s enquiry is that even $25,000 may amount to a significant percentage of the value of a small Estate.

His Honour observed that if practitioners are not constantly conscious of the costs in family provision matters then there is the possibility that costs will be taken out of their hands.

Practitioners should consider serving an Offer of Compromise at the appropriate time in accordance with R 20.26 of the Uniform Civil Procedure Rules. It is a powerful, but apparently underutilized resource in the List.

Matters That Will Save Time 

The matter has settled. Congratulations. What next?

His Honour highlighted the matters that should be addressed to facilitate the conclusion of the proceedings:

  1. Deliver original affidavits to his Honour in chambers.
  2. The administrator must file the affidavit proving service of the notice of eligible persons (Practice Note SC Eq 7 ¶ 9.2) on each eligible claimant. Personal service is preferable to service by post. If the only proof of service is by post then questions may arrive from his Honour’s Associate.
  3. There should be evidence of probate or a grant of administration.
  4. Original signed consent orders preferably should be delivered to his Honour, although scanned signed copies by email will suffice. The consent orders must address each of the matters required by Succession Act 2006 s 65(1), and especially s 65(1)(c) which specifies how the burden of provision is to be borne. In that regard, there should be evidence that the person(s) bearing the burden of provision is or are aware of, and consent to, For instance, if those persons attended the mediation it could be noted as a term of the consent orders.
  5. The consent orders should address each of the matters prescribed by Practice Note SC Eq 7 ¶ 19. That is, the application was made in time, the plaintiff is an eligible person, the notice of eligible persons has been served on the administrators and the administrator has attended to the formal matters in Practice Note SC Eq 7 ¶ 19(d)-(e).
  6. The consent orders should specify whether the plaintiff’s legacy is in lieu of, or in addition to, the bequest made in the will.
  7. If a lump sum is payable to the plaintiff as a percentage of the net estate then how the net estate is to be calculated should be clearly described in the orders.
  8. If a case commences and settles within 12 months of the date of death of the deceased then the consent orders should include a notation that all eligible persons have been notified and none of them propose to make a claim on the estate.

If all matters are in order his Honour will circulate a form of orders to practitioners for review before entering them on Justice Link.

Comments by the Author

Clearly his Honour’s observations are not to be taken as inflexible rules (for instance in respect of costs incurred up to and including mediation or preparation of the administrator’s affidavit in reply prior to mediation). As in every matter, practitioners must exercise their own discretion as to what is required based on the facts of the case and their client’s instructions.

In every case practitioners must be familiar with Practice Note SC Eq 7. It is a roadmap to efficient practice in the jurisdiction.

Practitioners should view the procedure in the List as being in two stages. The first stage to alternative dispute resolution and the second to hearing. Court statistics show that most matters settle prior to the hearing. Time and effort should not be expended on tasks necessary for a hearing until the alternative dispute resolution has proved unsuccessful.

Costs in family provision matters should always be in the front of your mind. The Practice Note specifically allows for proof for certain matters (property appraisals, asset valuations and descriptions of physical and mental disabilities: Practice Note SC Eq 7 ¶ 21) to be dealt with in a cost effective way. Don’t incur costs proving matters to the standard of strict proof where it is unnecessary.

Don’t look a gift horse in the mouth. When a judge running a court list offers his insights then practitioners are well advised to take note and adopt them in their own practice.

This article was first published in the December 2015 edition of the Law Society Journal of NSW.