Judges 'Rules' when Finalising a Will Contest.

For a free no obligation discussion phone 1800 960 156   

  • Law Society Accredited & experienced in over 5,000 Will Disputes. 
  • Recommended by Doyle's Guide to Best Lawyers in Australia. 
  • Recognised International STEP Member as Expert in Will Disputes.

SETTLEMENT CHECKLIST

This document must be completed in full where settlement of the proceedings has occurred and orders are being sought under the Act.

 All original affidavits (not already filed) and the exhibits to any affidavit to be relied upon, and/or to which reference is made in this document, are delivered to the Associate of the Family Provision List Judge at the time that Consent Orders are delivered/handed up.

 NAME OF MATTER or  SUPREME COURT FILE NO:

 Name of the Deceased:

 Date of death of the deceased:

 Date of Will:

 Grant of Probate or Administration:

 Value of estate:

 Any Notional estate and, if so, its value:

 Relationship of the Plaintiff to the deceased:

 Relationship of the Defendant to the deceased:

 Beneficiaries named in Will and relationship to the deceased:

 Interest of any minor beneficiary affected and how:

 FORMAL MATTERS

 Date of commencement of proceedings:

 If the application has not been commenced in time has an order extending time been sought in the Summons? The rules as at 1 July 2018 allow the parties to consent to a claim being brought out of time without the need for the courts approval. 

Identify Plaintiff’s Affidavits (and exhibits) to be relied upon: The judge will only want to read those affidavits necessary for him or her to identify the issues in the case. 

Is a copy of the Will/Probate/Letters of Administration in evidence: An order for provision cannot be made until a grant has made. Proceedings can be commenced before probate or administration is granted but no orders made by the court until there is a grant.

Paragraphs setting out assets and liabilities of the Plaintiff and any person with whom he or she is cohabiting: Evidence relating the the plaintiff's financial position and heath is the primary concern because an a court order will only be made if the plaintiff was left with inadequate provision for his or her maintenance, education and welfare in life. 

If approval of a release is sought, identify affidavits setting out matters to be considered by the Court in determining application for approval (see s 95(4) Succession Act, 2006): The court may be asked to make an order that the plaintiff is prohibited from ever returning to seek further provision at a later date.

Has the Notice of Eligible Persons been served: All persons who are elegible to claim must be notified of the proceedings to enable them to make a claim if they can demonstrate financial need. The court will not make an order until all eligible persons have been notified.

Identify Defendant’s Affidavits (and exhibits) to be relied upon: The court will look to see that the beneficiaries rights have been taken into consideration.

Has the prescribed notice been served on persons referred to in Practice Note SC Eq 7: This the notice provided to all eligible persons as referred to above.

Identify evidence of service of notices on eligible persons and/or beneficiaries:

Who is to bear the burden of provision being made: When provision is made to a plaintiff or further provision one or more of the beneficiaries must receive less out of the estate. Here the court requires to know which one or more beneficiaries and in what amount. When a case goes before a judge at a hearing the judge makes that decision.

Evidence of consent of those persons who, or who may be adversely affected, by the provision being made: Those beneficiaries receiving less must consent to the variation/alteration made to the will following provision or further provision being granted to a plaintiff.

If approval of a release is sought, identify affidavits setting out matters to be considered by the Court in determining application for approval (see s 95(4) Succession Act, 2006): If the settlement involves a person under 18 years of age or one lacking mental capacity the court must give a formal approval to the settlement. That means the judge will have a closer look at the settlement and virtually approve it as he or she would if the case came before them at a hearing. The judge does not have to actually agree with the precise settlement details however he or she will make sure that the incapacitated plaintiff of beneficiary has received a fair and reasonable result.

If the Plaintiff or any beneficiary is a person under a legal incapacity, is there evidence by the tutor and her, his or its adviser stating that the compromise is beneficial to the person under a legal incapacity:

If a trustee is to be appointed, has his, her, or its, consent been obtained and if so, is there evidence of his or her good fame and character:

Are there any matters that should be brought to the attention of the Court:

DATED:

Counsel/Solicitor for Plaintiff

Print name

Counsel/Solicitor for Defendant

Print name

 

For Judges Approval. 

doyles Law Society of NSW STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria

Testimonials

Exceptional skills of compassion and understanding.

Kindness and listening skills.

Simple but good advice.

Professional and people are lucky to call you “mate”.

I will always remember and hold you in great esteem.

A wonderful negotiator.

A good bloke with a good heart.

Thank you for always keeping to your word.

Help was wonderful and restored my faith in people.

I consider myself blessed I was able to receive your help.

I have been repeatedly impressed with your professionalism.

Consideration and efficiency.

Grateful for your honesty.

Thank you for your free professional advice.

Explained the facts concisely without any complications.

Would highly recommend you to anyone.

Sure to recommend you to my friends and colleagues.

Glad I had you on my side at mediation.

Will thoroughly recommend you to anyone.

Very sensible but protective at mediation.

So impressed with your return phone calls to me.

So impressed by you trying to protect me.

Advice invaluable and straightforward.

Professional but at the same time caring.

Always took the time to have an in-depth discussion.

Would not hesitate to recommend you to anyone.

Have no hesitation in highly recommending you to anyone.

Explained legal costs very clearly.

Genuine highly skilled Lawyer.

No complicated legal jargon.

You were right from the beginning Eric.

Available day, night and weekends.

No words to express my thanks and deep gratitude.

Compassion and long and hard devoted hours.

Immediate response to my phone calls and emails.

Personal and professional manner.

Explained things in a language that I could understand.

Free help and would recommend you to anybody.

Discreet manner handling a difficult situation.

Free initial advice delivered the same day as my enquiry.

Plain English answers and no complicated legal jargon.

Setting out easy to read information on legal fee costs.

Regular updates.

I have full faith in your integrity.

Answered my questions quickly and thoroughly.

Very grateful I had someone like you representing me.

Explained things so clearly.

Patience and understanding.

The first thing that struck me was how approachable you are.

Advice in plain English and knowledgeable.

Professional, genuine and honest.

Mum still talks about how wonderful you were.

Outstanding professionalism.

Availability was outstanding.

Perseverance and especially your patience.

I appreciate your integrity.

Never failed to be transparent and brutally honest.

Kept to your word on legal costs.

Answered to phone every time I called.

Explained it to me so clearly.

We are always available for a free no obligation discussion
1800 960 156

Sydney

Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 13, 111 Elizabeth Street ,
Sydney NSW 2000
.

i 1800 960 156

i (02) 4067 4118

Melbourne

Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 11, 456 Lonsdale Street,
Melbourne VIC 3000
.

i 1800 960 156

Brisbane

Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 10, 95 North Quay,
Brisbane Brisbane QLD 4000
.

i 1800 960 156

Newcastle

Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 1, 45 Hunter Street,
Newcastle NSW 2300
.

i 1800 960 156

i (02) 4067 4118