Documents for Court Proceedings in NSW.
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The claimant's (plaintiff) solicitor commences proceedings by filing in the Supreme Court Registry 184 Phillip Street Sydney the following documents;
(1) Summons seeking provision or further provision out of the estate of the deceased;
(2) Affidavit of evidence by the plaintiff;
(3) Plaintiffs Notice; naming all known 'eligible persons' and;
(4) the solicitors affidavit estimating legal costs. This summons does not require a certificate under section 347 of the Legal Profession Act 2004.
In some court cases the plaintiff's solicitor is required to declare that the plaintiff has a proper case and that allegation of fact have a proper basis. In victoria for example the solicitor is required to sign declaration when commencing proceedings like this:
In accordance with section 42 of the Civil Procedure Act 2010, I Eric Butler certify to the Court that, in relation to the Originating Motion filed on behalf of ABC on the factual and legal material available to me at present each allegation of fact in the document has a proper basis.
All that is required in NSW is the following;
I have advised the plaintiff that court fees may be payable during these proceedings. These fees may include a hearing allocation fee.
However as a solicitors of the court, solicitors are required to ensure any proceedings commenced are commenced with legal and factual merit.
If your solicitor, barrister or you do not attend the hearing, the court may give judgment or make orders against you in your absence. The judgment may be for the relief claimed in the summons and for the plaintiff’s costs of bringing these proceedings.
You must enter an appearance before you can appear before the court.
Please read this summons very carefully. If you have any trouble understanding it or require assistance on how to respond to the summons you should get legal advice as soon as possible.
You can get further information about what you need to do to respond to the summons from:
- The court registry.
- A legal practitioner.
- Law Access NSW on 1300 888 529 or at lawaccess.nsw.gov.au.
Court forms are available on the UCPR (Uniform Civil Procedure Rules) website at www.lawlink.nsw.gov.au/ucpror at any NSW court registry.
At the same time as the (1) Summons is filed in court, the (2) plaintiff's affidavit of evidence is also filed in court. Hereunder is the typical information required in an affidavit by the plaintiff.
(2) The Plaintiff's Affidavit of Evidence.
1. I am the plaintiff.
2. I believe that the contents of this affidavit are true.
3. I have referred to as the “deceased” in this affidavit.
4. The deceased was born on... and died on...
5. The deceased left a will dated...
6. Probate was granted to.... on ....
8. I am one ot the following eligible persons:
- a person who was the wife or husband of the deceased person at the time of the deceased person’s death,
- a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
- a child of the deceased person,
- a former wife or husband of the deceased person,
- a person:
- who was, at any particular time, wholly or partly dependent on the deceased person, and
- who is a grandchild of the deceased person or was, at that particular time or any other time, a member of the household of which the deceased person was a member,
- a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
9. Stating any family or other relationship between the plaintiff and the deceased person, including the nature and duration of the relationship.
10. Stating the nature and extent of any obligations or responsibilities owed by the deceased person to the plaintiff.
11. Stating the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existed when the application is being considered.
12. Stating the financial resources (including earning capacity) and financial needs, both present and future, of the plaintiff.
13. I have the following interests in the following companies or trusts:
14. Stating details of needs both present and likely future needs of the plaintiff.
15. Stating any physical, intellectual or mental disability of the plaintiff that is in existence when the application is being considered or that may reasonably be anticipated.
16. Describing any contribution (whether financial or otherwise) by the plaintiff to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the plaintiff.
17. Providing details of any provision made for the plaintiff by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate.
18. Providing any evidence of testamentary intentions of the deceased person, including evidence of statements made by the deceased person.
19. Providing details of the plaintiff being maintained, either wholly or partly, by the deceased person before the deceased person’s death and the extent to, and the basis on, which the deceased person did so.
20. Details of any other person is liable to support the plaintiff.
21. Providing details of the character and conduct of the plaintiff before and after the date of the death of the deceased person.
22. Providing details of the conduct of any other person before and after the date of the death of the deceased person.
23. Details of any relevant Aboriginal or Torres Strait Islander customary law.
Sworn or Affirmed.
At the same time as the (1) Summons is filed in court, and (2) plaintiff's affidavit of evidence is also filed in court (3) the notice of eligible persons is also filed. Hereunder is the typical information required in the plaintiffs notice of eligible persons;
(3) The Plaintiffs Notice of Eligible Persons.
To the defendant/executor/administrator:
- The plaintiff notifies you that in his/her opinion the persons named below are or may be eligible persons pursuant to s 57 Succession Act 2006:
- [Insert full name], [insert address]; and
- [Insert full name], [insert address].
- The plaintiff further notifies you that in his/her opinion, of the persons named above, the following is or may be a person under legal incapacity:
- [Insert full name], [insert address and capacity].
At the same time as the (1) Summons is filed in court, and (2) plaintiff's affidavit of evidence is filed in court and (3) the notice of eligible persons is also filed, the (4) solicitors affidavit estimating legal costs is filed. Hereunder is an example of a solicitors affidavit;
(4) The Solicitors Affidavit Estimating Legal Costs.
I say on oath/affirm:
1. I am the solicitor for the plaintiff.
2. I estimate the plaintiff’s total costs and disbursements, calculated on the ordinary basis, up to and including the completion of mediation to be $30,000.00 plus GST.
3. My costs agreement with the plaintiff is on a contingency basis.(No win no fee).