NSW Judges 'Rules' when Finalising a Contested Will Case.
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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:
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:
Counsel/Solicitor for Plaintiff
Counsel/Solicitor for Defendant
For Judges Approval.