Jurak v Latham

1. [1]

   HIS HONOUR: Law is practised better, and administered more justly, when all those involved not only understand the purposes which underlie the substantive legal principles concerning the rules of procedural fairness but have a disposition and desire to ensure that they are adhered to and applied.

2. [2]

   The parties to these proceedings have asked the Court to make consent orders in a family provision claim by a child of the late Josef Jurak (the deceased) in circumstances in which the Court, on 31 March 2023 (10 weeks prior to the commencement of these proceedings on 9 June 2023), made, by consent, final orders in another family provision claim on the deceased’s estate (earlier proceedings). Those orders expressly disregarded the interests of the current claimant on the basis that his whereabouts were unknown – and an express notation was made to that effect by the Court.

3. [3]

   It is evident that, on the very day that notation and the orders were made in March 2023, those acting in defence of the family provision claim had received contact (within the 12-month statutory period for bringing claims) from the current claimant, a child of the deceased, who sought information regarding the deceased’s estate. Nonetheless, the Court was not advised that contact had been received from the claimant and the notation disregarding his interests was made which notation was plainly incorrect.

4. [4]

   Concerned about how this could occur, I raised a requisition regarding the matter and have listed the matter twice. On the first listing, I raised with the parties and counsel for the defendant the particular concerns I had consequent upon examining the file in the earlier proceedings. I indicated that I would give the legal practitioner involved an opportunity to provide an explanation to the Court. On the second listing, that legal practitioner attended with counsel.

5. [5]

   At least ostensibly, in addressing the proposed orders in these proceedings, the Court has been placed in an invidious position when earlier orders were made on a basis disregarding the claimant’s interests in circumstances where the Court is now asked to make a family provision order expressly having regard to the claimant’s interests.

6. [6]

   The problem is not irremediable and, as will be evident below, I now, having considered the matter, make orders substantially in accordance with the proposal of the parties in these proceedings.

7. [7]

   On the listings of the matter, I addressed in some detail the chronology of events. The practitioner in question has provided an affidavit which has been formally read which provides some context to how the dilemma facing the Court has arisen. It is evident from the explanation that has been given that the practitioner made a mistake which was entirely unintentional and the practitioner very appropriately has accepted that there was a point of time in relation to the earlier proceedings in which, in hindsight, the practitioner ought to have drawn to the Court’s attention, prior to the making of orders in the earlier proceedings, the fact that the practitioner had been contacted by and on behalf of the current applicant.

8. [8]

   The notion that the Court should be advised of material matters bearing upon the making of an order is part of the duty owed by a legal practitioner to the Court.

9. [9]

   In various instances, the Court is also reliant upon executors and administrators, in performing their duties, to provide information of relevant facts – known to the executor or administrator – to the Court. This applies in family provision claims: e.g. Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94] per Meagher JA (Basten – as his Honour then was – and Campbell JJA agreeing). It also applies where a “trustee” (including, relevantly, an executor or administrator: s 5 Trustee Act 1925 (NSW) (Trustee Act)) seeks judicial advice: see my discussion concerning the provisions of s 63(2) Trustee Act in Application of Doolan [2023] NSWSC 320.

10. [10]

    The practitioner has apologised to the Court and the Court unreservedly accepts the apology. I hasten to add that the practitioner is a very capable and experienced practitioner, and it is evident from the practitioner’s involvement in both the earlier proceedings and this claim that the practitioner has attended carefully and appropriately to addressing other aspects of the matter which has enabled the Court to exercise its jurisdiction.

11. [11]

    In those circumstances, I do not propose to recite in detail the particular facts which have given rise to the circumstances before the Court. My above description of the predicament suffices to indicate the problem.

12. [12]

    In light of the nature and purpose of family provision litigation, the overriding purpose of the Civil Procedure Act 2005 (NSW) (CPA) (s 56(1)), the dictates of justice (s 58 CPA), practitioners’ and parties’ obligations to the Court (s 56(3),(4) CPA), the essential facts that I have briefly summarised above in my assessment should ordinarily lead a practitioner to make a disclosure of the existence of contact from an eligible person prior to finalisation of a claim in which parties proposed orders, so that the judge is able to make an appropriate decision on an informed basis about what orders ought to be made (including, for example, ordering specific notification to an eligible person with a view to bringing the potential claim to a head).

13. [13]

    Such a disclosure will assist to ensure a quick, just and cheap disposition of all claims against the estate, with proper regard to the interests of all necessary parties and affected persons, so as to avoid several hearings where there are multiple claims on an estate and the risk of inconsistent and insufficiently informed judgments.

14. [14]

    The sheer volume of matters which are filed in or allocated to the Succession & Probate List and, in particular, the volume of matters in which practitioners seek consent orders invoking jurisdiction under the Succession Act 2006 (NSW) (Succession Act)) necessarily has the effect that the Succession & Probate List Judges are heavily reliant upon practitioners not merely providing proposed orders in an orderly form but, additionally, specifically reliant upon practitioners being vigilant to drawing to the attention of the judges matters in which there is some question regarding whether persons who are or might be affected have been notified, any matters occasioning doubt about the exercise of the jurisdiction and any other unusual aspects attending the matter.

15. [15]

    The Court is aware that, from time-to-time, mistakes will be made by practitioners and that it is important, to the extent that it is proper and just to do so, to not react with undue criticism, but rather be merciful in responding to and dealing with such mistakes.

16. [16]

    Whilst these reasons for judgment make a determination regarding the orders affecting the deceased’s estate proposed to be made in these proceedings, the reasons are also designed to be educative and to act as an encouragement to the profession to continue their vital work in assisting the Court in the administration of justice and ensuring due process in finalisation of claims upon deceased estates.

17. [17]

    A practitioner’s awareness to ensure that proper notification is made to an affected party and to ensure the Court is made aware of relevant facts bearing upon an affected party will be heightened by understanding the purposes which underlie the jurisdiction. It is a characteristic of a practitioner’s duty to the Court that he or she will be astute to see that all persons (and not merely their clients) affected by the claims in the proceedings are afforded procedural fairness.

18. [18]

    In light of the above, there are a number of aspects which I consider it might be helpful to address.

19. [19]

    First, it is evident that not all practitioners are entirely aware of the correct procedural requirements in dealing with family provision claims. I will make some comment regarding that.

20. [20]

    Secondly, I will address some remarks to the nature and purpose of family provision substantive law and procedural rules.

21. [21]

    Thirdly, I will make some observations regarding thoughtful operation of the requirements in practice.

22. [22]

    Lastly, I will address some comments regarding the making of consent orders in family provision claims. There are different types of settlements that might arise within family provision claims and the approach of the Court to such settlements is attended by some differences and nuances which it is appropriate to note.

Procedural requirements

1. [23]

   Each aspect of the Court’s jurisdiction involves various provisions which govern the Court’s procedures. The various provisions include statutory provisions and practice notes.

2. [24]

   The principal legislation and rules bearing upon family provision proceedings are the Succession Act (and, in particular, Ch 3), the Family Provision Act 1982 (NSW) (FPA), Pt 12 r 1A Supreme Court Rules 1970 (NSW) (SCR), Sch J (Succession Act 2006) SCR (Sch J – SA) and Schedule J (Family Provision Act 1982) SCR (Sch J – FPA), the CPA and the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

3. [25]

   The main relevant practice note is Practice Note SC EQ 07 – Succession & Probate Lists, which, on 16 June 2023, was issued by the Chief Justice, with a commencement date of 1 July 2023 (Practice Note or PN). From time-to-time, other practice notes may have relevant application bearing upon orders that are made in family provision proceedings.

4. [26]

   The Succession Act contains provisions which address notification to persons by or in respect of whom an application for a family provision order may be made (other than a beneficiary of the deceased’s estate) but who have not made an application. In particular, s 61 is in the following terms:

5. [27]

   There are no relevant regulations under the Succession Act which address the manner and form of notice of a plaintiff’s family provision application.

6. [28]

   Whilst the Practice Note has prominent visibility in the profession, it is not the principal source of the “notice” obligations in family provision claims.

7. [29]

   Rather, the applicable “rules of court” referred to in s 61(2)(a) Succession Act are the rules in Sch J – SA (and Sch J – FPA in cases of estates where the deceased died prior to 1 March 2009).

8. [30]

   The defendant to family provision proceedings will usually be the executor or administrator of the deceased’s estate. For convenience, Sch J – SA and the Practice Note designate that representative of the estate as being the “administrator”. The Practice Note expressly provides that “administrator” includes executor and a person appointed to represent the estate for the purposes of the litigation: PN [12]. In these reasons, unless otherwise indicated, I will use the term “administrator” to include persons who represent the estate of a deceased person whether that person be an executor, administrator or someone appointed by an order made under the rules (e.g. r 7.10(2)(b) UCPR) to represent the estate.

9. [31]

   Schedule J – SA contains 5 clauses which set out matters to be attended to by parties in family provision proceedings and contain powers for the Court to make various orders. The clauses deal with:

   1. (1)

      commencement of proceedings;

   2. (2)

      directions as to parties and service;

   3. (3)

      representative orders;

   4. (4)

      notice to eligible persons; and

   5. (5)

      (the) affidavit of administrator.

10. [32]

    In family provision applications, the applicant must join as a defendant any administrator, unless the plaintiff is the sole administrator of the estate, and must not join any other person unless there is sufficient reason to do so: cl 1 Sch J – SA.

11. [33]

    An example of a “sufficient reason” to do so occurs in relation to persons holding property which an applicant seeks to have designated as notional estate. Thus, if a notional estate order is sought under Pt 3.3 Succession Act with respect to property to be designated as notional estate, it is usually necessary to join all proper parties, including the legal owners of the purported notional estate, as defendants, in addition to the joinder of the representative of the deceased’s estate: Smith v Dayman [1994] NSWCA 286 at 4 per Handley JA; Yee v Yee [2017] NSWCA 305 (Yee v Yee) at [196]-[198], [205]-[209] per Gleeson JA (McColl JA at [191] and Simpson JA – as her Honour then was – at [210] agreeing) citing, inter alia, John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 (John Alexander’s Clubs) at [131] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ, Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 at 426B-F per Mason P (Meagher JA agreeing). Such an order can only be made after giving the affected person the opportunity to be heard in opposition to the making of such an order: Yee v Yee at [209].

12. [34]

    The Court has power at any stage of the proceedings to direct that any person be added or substituted as a party or that notice of proceedings be served on any person in addition to or instead of the defendant: cl 2(1) Sch J – SA. That power does not affect the powers of the Court regarding joinder of parties under Pt 7 UCPR: cl 2(2) Sch J – SA.

13. [35]

    A family provision applicant must, unless he or she is the administrator, when serving the application, also serve a notice on the administrator showing who, in his or her opinion, is or may be an eligible person (designating as a person under legal incapacity any eligible person who, in his or her opinion, is or may be a person under legal incapacity): subcl 4(1) Sch J – SA. This notice is known as a “Notice of Eligible Persons”.

14. [36]

    There are specific provisions dealing with what the Practice Note refers to as “notice of the plaintiff’s application” (PN [18.10]) which notice, as is evident from the form prescribed (see below), is known as a “Notice of Claim”: subcl 4(2) Sch J – SA. That subcl provides as follows:

15. [37]

    The content of the form of “Notice of Claim” for family provision proceedings under the Succession Act is set out in subcl 4(3) and I have reproduced it below in Schedule 1 to this judgment.

16. [38]

    Relevantly, in relation to Notices of Claim for the rare cases which might still be brought under the FPA (where a belated out of time claim is made regarding the estate of a deceased person who died prior to 1 March 2009), Sch J – FPA prescribes a specific form being Form 89B (amended in 1985) and I have reproduced it below in Schedule 2 to this judgment.

17. [39]

    The administrator in family provision claims must make an affidavit setting out certain matters in relation to the estate including matters bearing upon:

    1. (1)

       the property of the estate including property which may be the subject of a prescribed transaction or relevant property transaction: subcl 5(1)(a)-(c) Sch J – SA; and

    2. (2)

       persons potentially affected by family provision orders, including people holding property, beneficiaries and eligible persons: subcl 5(1)(d)-(f) Sch J – SA.

18. [40]

    Other family provision procedural requirements are set out in the Practice Note which is issued pursuant to s 15(1) CPA.

19. [41]

    There is a degree of “overlap” in the guidelines of the Practice Note with the requirements of Sch J – SA.

20. [42]

    In family provision proceedings, the plaintiff is required to file and serve with the summons:

    1. (1)

       an affidavit by the plaintiff adapted from the form which is Annexure 1 to the Practice Note: PN [15.1]; and

    2. (2)

       a Notice of Eligible Persons, including the name and, if known, the address of any person who is, or who may be, an eligible person: PN [15.2].

21. [43]

    A copy of the Notice of Eligible Persons must be served, which is achieved by it being attached to the summons or to the plaintiff’s affidavit which is served: PN [15.2].

22. [44]

    The requirement in the Practice Note regarding this reflects closely the terms of subcl 4(1) of Sch J – SA.

23. [45]

    The Practice Note indicates that at the first directions hearing, the Court may make directions, including for the service by the administrator of an affidavit providing for all or some of certain specified information set out in subparagraphs 18.1-18.13: PN [18].

24. [46]

    Whilst the wording prefacing those subparagraphs suggest that this is information which may be directed to be provided by affidavit certainly the way the list has operated for the last decade is that this is information which the Court expects the administrator to provide by affidavit to facilitate the orderly running of family provision proceedings.

25. [47]

    The information which may be ordered to be provided includes the following:

26. [48]

    It is evident from the wording of sub-paragraph 18.10 that it assumes that the administrator will give “notice of the plaintiff’s application” to certain persons. Whilst the wording in subparagraph 18.10 is not in express terms, the clear implication is that the administrator will serve a notice of the plaintiff’s application (i.e. a Notice of Claim) on persons who are, or may be, eligible persons as well as persons beneficially entitled to the distributable estate.

27. [49]

    The terms of subcl 4(2) and (3) Sch J – SA are the primary source of the administrator’s obligations in relation to persons to be served. The terms of subparagraph 18.10 PN are a reminder of the administrator’s obligations in relation to persons to be served.

28. [50]

    There is no prescribed method of service of a Notice of Claim in either subcl 4(2) and (3) Sch J – SA or subparagraph 18.10 PN. Subparagraph 18.10 PN in its terms indicates that the method of service by which such notice has been given should be specified in the administrator’s affidavit “(e.g. personal service, by post etc)”. I will return to this issue below.

The nature and purpose of substantive law and procedural rules in relation to family provision claims

1. [51]

   Fundamentally, judges and practitioners who practice in family provision claims are engaged in an exercise of the administration of justice for the purposes identified in law.

2. [52]

   Lindsay J, writing extrajudicially in “Parties, Property and Notice of Proceedings in Succession Law Cases” (Paper), College of Law Seminar, 20 February 2019, has helpfully summarised the purposive nature of the related succession law and protective jurisdictions.

3. [53]

   His Honour noted (at [28]) that:

4. [54]

   The character of the purposes is often better perceived by reference to the natures of other associated jurisdictions. Lindsay J noted in relation to the protective jurisdiction and probate jurisdiction as follows:

5. [55]

   Legislative provisions and statutory rules are to be construed in a way that promotes the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule): s 33 Interpretation Act 1987 (NSW) (Interpretation Act).

6. [56]

   The nature of practice notes in particular as they apply to family provision proceedings was the subject of detailed comment by Hallen J in Oxley v Oxley [2018] NSWSC 91 at [70]-[78]. His Honour observed that one purpose of a practice note is to aid consistency and orderliness in the preparation of cases: at [77].

7. [57]

   In particular, his Honour noted (at [78]) that:

8. [58]

   There are, of course, differences between practice notes, legislative provisions and statutory rules.

9. [59]

   Different jurisdictions have different mechanisms for addressing the notification requirements to various people who may be affected by proceedings before the Court.

10. [60]

    This is highlighted by Professor Dal Pont, who states (see GE Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis) at 559 [17.16] (omitting footnotes)):

11. [61]

    Usually, the substantive law will guide considerations as to which parties in proceedings should be joined, notified, or given an opportunity to be heard. Within the Supreme Court, there are various legislative provisions and practice guides which will enable the Court to address the issue of joinder of parties: see my comments in Re Rosie (No 2) [2022] NSWSC 1750 at [129].

12. [62]

    Generally speaking, the rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of the order: Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 at [77] per McHugh J.

13. [63]

    In particular, where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party to the proceedings and ought to be joined: John Alexander’s Clubs at [131] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ.

14. [64]

    The purpose of serving a Notice of Claim is to alert the recipient to the fact that if they are entitled and wish to apply for an order for provision they should do so and that, if they do not do so, the Court may deal with the applicant’s claim without regard to any possible application by the recipient. The wording of the form, as noted above, connects with the provisions of s 61(2)(a) Succession Act.

15. [65]

    The purpose of notification is not confined to being substantively and procedurally fair to potential affected persons.

16. [66]

    It has an important role in how the Court deals with family provision claims.

17. [67]

    Without intending to be exhaustive, it is helpful to corral all potential claims to be dealt with and (in the absence of a settlement) to be heard by the Court together.

18. [68]

    This has a slightly different aspect to it than applies in probate proceedings. There are particular aspects of probate proceedings which bind parties who are “interested” in the proceedings. Parties will have an interest in probate proceedings if they have a right which will be affected by the outcome: Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 (Nobarani) at [49] per Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ citing In re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137 at 145 per Philp J (Webb CJ and Mansfield J agreeing). There is no notion in probate litigation that property interests are so de minimis that they can be ignored. A gift of money, or an item (e.g. jewellery) even of insubstantial or low monetary value nonetheless amounts to a legal interest: Nobarani at [49].

19. [69]

    Family provision litigation of its nature is such that there will be occasions where there is a multiplicity of proceedings relating to an estate. Thus, the purpose of alerting the Court’s attention to potential eligible persons other than the applicant in the particular proceedings that the Court is dealing with is not to prevent multiple proceedings being commenced. It is frequently the case that the Court may deal with two or more family provision proceedings and hear them together. Frequently, orders are made that provide for multiple family provision proceedings to be listed for hearing together and to enable evidence in one matter, subject to any just objection, to be evidence in the others.

20. [70]

    Rather, there are specific other important aspects to consider. These include:

    1. (1)

       enabling the Court to deal with the litigation before it relating to an estate in a manner that is consistent with the quick, just and cheap disposition of all the proceedings. That will include generally (although not exclusively) hearing family provision claims together; and

    2. (2)

       avoiding the prospect of there being inconsistent orders or findings in relation to family provision claims concerning the one estate.

21. [71]

    Those are considerations which are not confined to contested hearings but apply with equal force to multiple family provision claims that are proposed for settlement and dealt with by the Court in chambers.

22. [72]

    I address below certain of the procedural rules that are applicable to family provision claims. However, initially, it is important to make a number of observations about procedural rules.

23. [73]

    First, the description of rules or forms being “procedural” does not mean that the requirement for certain things to be done and the content of rules or forms are “technicalities” or mere “formalities”. The requirement and content of “procedural” rules and forms in many cases is grounded in fundamental aspects of the administration of justice.

24. [74]

    Thus, the fact that a requirement to give notice is embodied in a “procedural rule” should not obscure the fact that notice to affected persons is (absent statutory modification) an essential part of the administration of justice and natural justice.

25. [75]

    Secondly, the Court does not administer justice in a vacuum apart from the role of parties and practitioners. It is fundamental that practitioners and parties are not consumers of a service of “justice” provided by the Court. Practitioners are officers of the Court and assist the Court in administering justice. Parties themselves have a statutory duty to assist the Court to further the overriding purpose to facilitate the just (emphasis added), quick and cheap resolution of the real issues in civil proceedings, and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court: s 56(3). Indeed, any person with a relevant interest in the proceedings commenced by the party must not, by their conduct, cause a party to the proceedings to be put in breach of a duty: s 56(4) CPA.

26. [76]

    Thirdly, it may be the case that a practitioner or a party pristinely complies with a rule of Court, and yet justice may be stymied because the practitioner or party does not inform the Court of some material matter. Thus, performance of procedural requirements within the proceedings is simply part of the overall dispensation of justice in the proceedings. The guiding principles in relation to case management under the CPA and UCPR reflect, in part, the wisdom that rules are intended to facilitate the dictates of justice rather than inhibit them. Compliance with rules of Court does not by any measure exhaust the requirements of justice in considering and finalising family provision consent orders.

27. [77]

    The object of service is to ensure that the document in question (and, more particularly, its contents) will come to the notice of the person to be served so that any lack of appearance is fairly to be attributed to a decision of that person: Ainsworth v Redd (1990) 19 NSWLR 78 at 85 per Kirby ACJ. His Honour noted that:

28. [78]

    The same principle applies to service of a Notice of Claim, namely, that if proper service is effected, the failure of the recipient to advance a family provision claim can be regarded by the Court as being fairly to be attributed to a decision of that person.

29. [79]

    The terms of s 61 Succession Act particularly address notification to potentially eligible persons who have not made family provision claims (“of any other person by or in respect of whom an application for a family provision order may be made (other than a beneficiary of the deceased person’s estate) but who has not made an application”).

30. [80]

    The provision of notice requirements in subparagraph 18.10 PN and subcl 4(2) and (3) Sch J – SA has connection with s 61(2)(a) Succession Act which provides that the Court may disregard the interests of a person in respect of whom an application for a family provision order may be made (relevantly) only if notice of the application, and of the Court’s power to disregard the interests of the person, is served on the person concerned, in the manner and form prescribed by the regulations or rules of Court.

31. [81]

    The effect of s 61(1) of the Succession Act is that the Court cannot disregard the interests of beneficiaries of the estate: Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331 at [68] per Sackville AJA; Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641 at [35]-[37] per Basten JA (as his Honour then was) (Macfarlan JA and Ward JA – as the President then was – agreeing).

32. [82]

    The genesis of the introduction of the provisions of s 61 Succession Act (and its predecessor, s 20 FPA) were commented upon by Young AJ in Dunne v Dunne [2013] NSWSC 1911; (2013) 12 ASTLR 299. His Honour stated at [20]:

33. [83]

    Various judgments of the Court explain the practical operation of the provisions of s 61. A recent example is the decision of Hallen J in Ballam v Ferro [2022] NSWSC 1200 at [49]:

Thoughtful operation of the requirements in practice

1. [84]

   Informed by the nature of the family provision jurisdiction, and the purposes evident in the provisions of the Succession Act and the relevant procedural rules, fundamentally, practitioners are expected and encouraged to litigate family provision claims in a way which promotes and seeks to achieve the purposes and objects underlying the jurisdiction.

2. [85]

   Who constitutes an eligible person is defined by s 57 Succession Act.

3. [86]

   The terms of Sch J – SA require respectively a plaintiff and an administrator to address the question of who might be eligible persons.

4. [87]

   The plaintiff is required to serve a notice on the administrator showing:

5. [88]

   Likewise, the administrator must serve a notice on certain persons (subcl 4(2)(a)-(c) Sch J – SA), persons nominated by the plaintiff in the plaintiff’s Notice of Eligible Persons (subcl 4(2)(d) Sch J – SA) and:

6. [89]

   The phrasing of the requirement in each case for a plaintiff and administrator uses the noun “opinion”. Words in statutory rules have meanings dependent upon text, context and purpose.

7. [90]

   In considering the meaning of “opinion” in subcll 4(1) and (2) Sch J – SA, the context is that the Court, at an early stage in the proceedings, requires the parties to assist the Court in identifying persons who fit the description of being an eligible person in order for notice to be given to them.

8. [91]

   As I explained above, the purpose of such notice is not to prevent multiple proceedings being commenced, but, rather, to enable the Court at an early stage to identify persons having a potential right to claim on the estate on the one hand or persons who might be affected by the outcome of litigation on the estate on the other.

9. [92]

   Plaintiffs will ordinarily have some relational connection with the deceased and by dint of that be aware of and have some idea of others who have or might have a connection with the deceased so as to make them eligible.

10. [93]

    Administrators, depending upon whether they are related to the deceased or not (such as might occur where the administrator is a solicitor or a trustee company), might or might not be aware of persons who might have a connection with the deceased so as to make them eligible. Administrators who do not have a close relational connection with the deceased, but by dint of their access to the deceased’s personal documents may be aware of potentially eligible persons.

11. [94]

    Thus, between them, plaintiffs and administrators, by dint of their separate sources of knowledge, will ordinarily be able to identify the range of potentially eligible persons.

12. [95]

    Contestable factual issues may arise in relation to whether a person is eligible. Some categories of eligibility in practice tend to be more contestable than others. Sometimes, even in what might be thought to be straightforward cases of eligibility, contestable issues may arise. Leeming JA in Sun v Chapman [2022] NSWCA 132 (Sun v Chapman) at [3] expressed this reality in the following terms:

13. [96]

    For example, whether a person was in a de facto relationship with the deceased so as to constitute eligibility is not a discretionary decision. Whilst the decision involves matters of evaluation, it requires a characterisation of facts as found against the statutory phrase as to whether the parties were living together as a couple having regard to the indicia provided for in s 21C Interpretation Act: Sun v Chapman at [115] per White JA.

14. [97]

    Questions of whether dependency, total or partial, exists is a question of fact: Ball v Newey (1988) 13 NSWLR 489 at 492D per Samuels JA (Hope JA agreeing) citing Aafjes v Kearney (1976) 180 CLR 199; [1979] HCA 5; Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [53]-[72] per Payne JA (Macfarlan JA agreeing at [1], Sackville AJA agreeing at [132], [135]-[139]).

15. [98]

    It is not the purpose of this judgment to delve deeply into the law on eligibility.

16. [99]

    The critical point to be made is that even though a decision regarding eligibility is binary, and may involve some degree of contestability, in the interlocutory stages of the proceedings neither the parties nor the Court is engaged in an exercise in conclusively determining whether someone is or is not an eligible person for the purposes of the notification requirements of subcll 4(1) and (2) Sch J – SA.

17. [100]

    Thus, where each of the plaintiff and administrator is required by the rules to form an opinion as to who “is or may be an eligible person”, so as to give notice, the task is not the same as the task that the Court undertakes upon the final hearing of family provision claims.

18. [101]

    Rather, the object is to identify persons in such a way as to cast a broad enough net to sensibly be able to notify persons who might be contenders for eligibility. Decisive determination as to eligibility does not occur at that stage. Ultimate refinement and precision about eligibility occurs at the final hearing.

19. [102]

    Bearing that in mind, where each of a plaintiff or an administrator is called upon to identify persons who in their “opinion” “are or may be eligible”, the rules are not intended to encourage the plaintiff and the administrator to make fine distinctions excluding candidates. Rather, if it is plausibly considered that a person may be an eligible person, such a person should generally be nominated by the plaintiff or administrator, accepting the possibility that there might be some factual dispute about the question of eligibility.

20. [103]

    In this regard, the first of a number of definitions of the meaning of “opinion” provided by the Macquarie Dictionary, online ed, namely, “judgement or belief resting on grounds insufficient to produce certainty”, comes close to describing the sort of exercise that the plaintiff and administrator are called upon to engage in.

21. [104]

    That this is the exercise required by an administrator is reinforced by the terms of the notice that is to be given.

22. [105]

    The Notice of Claim (see below) sent by an administrator to a person whom the administrator opines “is or may be an eligible person” is not a representation to the recipient that the administrator agrees or promises that the recipient is an eligible person.

23. [106]

    That is evident from the terms of the notice:

24. [107]

    There is no prescribed form of Notice of Eligible Persons. Practically speaking, what practitioners do (and are expected to do) is adapt UCPR Form 1 and use that, appropriately modified to nominate persons who are, or may be, eligible persons.

25. [108]

    That does not mean that the form and wording in it is simply “at large”. Clearly, the content of the wording is derived from subcl 4(1) Sch J – SA. Further, the Practice Note states that a Notice of Eligible Persons should include the name and, if known, the address of any person who is, or who may be, an eligible person: PN [15.2].

26. [109]

    Thus, without being prescriptive, I suggest that the following wording (contained in a document adapting UCPR Form 1) is acceptable wording:

27. [110]

    To illustrate the point that precision of form (as distinct from substance) is not vital, I further suggest that a slightly varied form of wording is also acceptable

28. [111]

    Although there is no express requirement in the rules, sometimes it is also helpful to add some description of the nature of the eligibility. For example: [Name, “child of the deceased”].

29. [112]

    My experience of the List is that not infrequently the plaintiff fails to identify persons who are self-evidently eligible persons including, for example, the administrator, who may be the spouse or child of the deceased. All eligible persons should be named (e.g. the plaintiff might state “The plaintiff notifies you that in [his/her] opinion the persons named below, as well as the administrator, are or may be eligible persons …”).

30. [113]

    The requirement under the rules is for the plaintiff to serve the Notice of Eligible Persons on the administrator “when serving the application” subcl 4(1) Sch J – SA. The Practice Note provides that a copy of the notice must be attached to the summons or to the plaintiff’s affidavit: PN [15.2].

31. [114]

    My experience of the List is that many practitioners who e-file the summons comply with the requirement that the notice be attached to the summons or to the plaintiff’s affidavit.

32. [115]

    However, whilst it is distinctly helpful for practitioners to do that, and they should endeavour to do that (i.e. attach the Notice of Eligible Persons to the summons or to the plaintiff’s affidavit), it is not fatal to the plaintiff’s application if it is not so attached. Nor do I regard it as an egregious breach of the rules if the Notice of Eligible Persons is not attached to the summons or the plaintiff’s affidavit or filed simultaneously but separately or filed at a time a little later than the filing of the summons.

33. [116]

    The persons to be served are as I have specified above: subcl 4(2)(a)-(e) Sch J – SA.

34. [117]

    Further to my comments above, the requirement of the administrator under subcl 4(2)(e) Sch J – SA to form an opinion as to who is or may be an eligible person is intended to alert the administrator to serving persons who the administrator plausibly considers to be an eligible person, accepting that there might be some factual dispute about the question. The purpose of the notification at this point of time, as I have indicated, is not to decisively conclude the question of whether or not a person is eligible. That is not the task of the administrator. That task, in the case of any ultimate dispute, is reserved to the Court.

35. [118]

    By far the main impediment to the making of orders presented by practitioners to the Court is that there has been a failure to notify certain eligible or other affected persons or a failure to provide adequate proof that such notification has occurred.

36. [119]

    In particular, there are many cases in which former spouses have not been notified. Former spouses are eligible persons: s 57(1)(d) Succession Act. The fact that a former spouse was divorced from the deceased decades prior to the deceased’s death and had little or no contact with the deceased in the interim does not preclude eligibility.

37. [120]

    It is important for the purpose of the administrator in forming an opinion and complying with subcl 4(2)(e) Sch J – SA not to conflate the question of whether a person is or may be eligible with the questions as to whether there are factors which warrant the making of the application and whether adequate provision has not been made by the deceased for such person: cf Chisak v Presot [2022] NSWCA 100 at [44], [49] per White JA (Macfarlan and Gleeson JJA agreeing at [1], [2]).

38. [121]

    If an administrator is in any doubt about the matter, it is entirely appropriate for the administrator, in the interlocutory stages of any proceedings, to raise the matter for the consideration of the List Judge.

39. [122]

    There are three common mistakes in relation to service of Notices of Claim, namely, that, instead of service of the prescribed Notice of Claim document, the administrator serves upon the recipient:

    1. (1)

       the plaintiff’s summons and supporting affidavit (and sometimes all the affidavits prepared thus far in the proceedings); or

    2. (2)

       the plaintiff’s Notice of Eligible Persons; or

    3. (3)

       a form of “Notice of Proceedings” in the form of UCPR Form 140 – which is a form applicable to probate proceedings.

40. [123]

    The content of Notices of Claim is such as to alert the recipient to three important things specific to family provision claims, namely:

    1. (1)

       the need to address the questions of whether he or she is entitled to make a claim;

    2. (2)

       the fact that there is a prescribed period within which a claim may be made, such that the recipient does not have an open-ended period in which to decide whether to make a claim or not; and

    3. (3)

       the risk that if they do not make a claim before the Court deals with the plaintiff’s application, the Court may deal with the plaintiff’s application without regard to any possible application by the recipient.

41. [124]

    This, as I have noted, has express connection with the provisions of s 61 Succession Act.

42. [125]

    Once the nature of the proceedings is appreciated, and the statutory provisions understood, it will be readily realised why service on the persons required to be served of (a) the summons, (b) a Notice of Eligible Persons, or (c) a Notice of Proceedings, will not satisfy the notice functions that a Notice of Claim performs. None of those documents are apt to alert the recipient to all of the three important matters I have identified above.

43. [126]

    Despite the obvious connections between the nature of probate proceedings and family provision proceedings, the notification requirements in each of those type of proceedings is separately provided for to meet the specific objects of the jurisdiction.

44. [127]

    In probate proceedings, a Notice of Proceedings must be served personally: SCR Pt 78 r 64. There are particular provisions in relation to service of notices on persons under a legal incapacity: SCR Pt 78 rr 61-63.

45. [128]

    In family provision proceedings, there is no specific requirement for personal service. Documents in family provision proceedings as in other proceedings are not required to be personally served unless the rules so require or the Court so orders: r 10.20 UCPR.

46. [129]

    Thus, Notices of Claim in family provision proceedings are served in a variety of manners. This includes personal service, service by post and service by email.

47. [130]

    When one looks at the provisions of Sch J – SA, the distinctive characteristic which pervades all of its provisions are matters relating to the joinder of parties to the proceedings and notification of affected persons.

48. [131]

    Practitioners are expected to use common sense in light of the purposes which underlie the jurisdiction as to what method of service is appropriate in any given situation.

49. [132]

    The Court has ample power to require a particular method of service to meet notification requirements having regard to the exigencies of each particular case. That clearly includes, in appropriate cases, the Court requiring that personal service be effected.

50. [133]

    Sometimes, when judges are presented with proposed orders in chambers, there is a lack of certainty as to whether a person is eligible or not or whether a person ought to be given notice. That can occur where the evidentiary material before the Court is slight, or it is not particularly addressed to considerations of identifying other affected parties.

51. [134]

    Mainly, the issues arise in relation to potential eligible persons being other former spouses (s 57(1)(d)) or dependent members of the household of which the deceased was a member: s 57(1)(e).

52. [135]

    Many affidavits are helpful in providing some details of the deceased and some family members. However, it is surprising how many family provision affidavits principally from applicants but also from administrators fail to identify sufficient basic details in relation to family members with respect to a deceased to enable a judge to clearly, and without further inquiry, finalise the matter. It is common that the affidavits contain a narrative where persons are identified by reference to given names (e.g. “Bob” or “Heidi”) but no indication is given as to what their connection is to the deceased. This can be unhelpful as judges reading material for the first time do not have relevant undisclosed background knowledge that the deponent takes for granted.

53. [136]

    The evidence might, for example, show that certain people have lived with the deceased for a period of time and raise a question as to whether the person has been dependent (even in part) upon the deceased to some degree.

54. [137]

    Such evidence, without clarifying who the respective parties are, gives rise to a dilemma for a judge dealing with proposed consent orders.

55. [138]

    The judge needs to be provided with sufficient material to make a considered decision about whether notice is required or not rather than be left with evidence that comes tantalisingly close to suggesting eligibility as to leave the judge in doubt.

56. [139]

    Possibly, the simplest means by which connections between the applicant and the deceased and all other relevant family members or persons who might be eligible under the provisions of s 57 Succession Act can be identified is the provision of a family tree diagram.

57. [140]

    Such a diagram is a particularly effective method of readily drawing to the judge’s attention the relevant persons to be considered.

58. [141]

    Death certificates in relation to the deceased are also very helpful documents which will often readily identify potential former spouses and children of the deceased.

59. [142]

    The fact that family members themselves do not know precise details, whilst understandable, does not absolve practitioners from making some enquiry nor indeed absolve a judge from having to make some decision about the matter.

60. [143]

    This type of practical dilemma was commented upon by Lindsay J in Estate Pascale [2016] NSWSC 443, who stated at [45]:

61. [144]

    Legal practitioners are encouraged to be mindful of who might be eligible or affected and to ensure that the evidentiary material provided to the Court addresses whether or not someone is eligible and ought to be given notice.

62. [145]

    The way the Succession and Probate List operates in chambers is that the List Judge may, by email correspondence, issue a type of requisition seeking clarification of certain matters including the provision of some additional evidentiary material.

63. [146]

    There are relatively simple and very effective means by which practitioners and parties can place before the Court information which readily identifies the persons who might be eligible or might be required to be served with notification.

64. [147]

    Very often, little further material is required. Whilst it is not desirable to outline hard and fast rules, I note that at times the additional material required ought to be done by means of affidavit evidence. At other times, on some discrete issues, I have been prepared to act upon a solemn email assurance from the legal practitioners regarding certain matters.

65. [148]

    It should be observed that where the evidence is clear, and there is no sensible or plausible suggestion that a particular person is an “eligible person” within the meaning of s 57 Succession Act, s 61 does not require any consideration of whether the interests of such a person can only be disregarded if he or she is served with notice of the applicant’s claim for a family provision order: Gardiner v Gardiner [2014] NSWSC 435 at [128] per Robb J.

66. [149]

    A statement, without more, by a practitioner or an administrator that he or she is unaware of the whereabouts of a potentially eligible person will generally be insufficient to satisfy the Court regarding notification requirements. Generally, the Court expects some attempt at enquiry to locate potentially eligible persons.

67. [150]

    Basic evidence regarding enquiries might, for example, include an electoral roll search or a property search.

68. [151]

    However, once the person is identified as being plausibly eligible there should be evidence provided:

    1. (1)

       that proves he or she has been served with a Notice of Claim; or

    2. (2)

       that indicates that he or she has no intention of making any claim; or

    3. (3)

       in support of an order sought pursuant to s 61(2)(b) Succession Act for a determination that service of such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.

69. [152]

    Where appropriate, the Court will make an order dispensing with notice to certain persons. Examples of cases where the Court has expressly exercised the power under s 61(2)(b) Succession Act include Sitki v Sitki; Sitki v Aksoy [2016] NSWSC 1396 at [3] per Stevenson J (service impracticable); Hart v Van Son [2014] NSWSC 585 at [14] per Kunc J (service unreasonable or impracticable); Stone v Stone [2016] NSWSC 605 at [1] (see footnote 1) per Brereton J (as the Commissioner then was) (notice unnecessary).

70. [153]

    On occasion, administrator affidavits indicate that no Notices of Claim have been filed or served because all eligible persons or beneficiaries are parties to the proceedings. Whilst in some cases that is an understandable approach, it leaves unclear whether eligible persons have been alerted to their right to make a claim. It is generally helpful, for the Court’s purposes, for the administrator’s affidavit to clarify that eligible persons have been alerted to their right to make a claim.

Consent orders generally

1. [154]

   The Court’s approach generally to consent orders depends upon the nature of the jurisdiction being exercised. A brief practical summary of some of the circumstances in which a judge may be led not to make consent orders was outlined by Young J (as his Honour then was) in Kalyk v Whelan (Supreme Court (NSW), Young J, 31 July 1985, BC8801538, unrep) at 8:

Consent orders in family provision claims

1. [155]

   The Court has jurisdiction to make orders in relation to settlement of family provision claims.

2. [156]

   Agreements to compromise litigation including family provision litigation are encouraged by the law: Bartlett v Coomber [2008] NSWCA 100 (Bartlett v Coomber) at [57] per Mason P, at [72] Hodgson JA. In family provision proceedings under the Succession Act, there is an express statutory object of encouraging the settlement by affected parties of disputes concerning the estate of a deceased person: s 98(1) Succession Act. In furtherance of that object, unless the Court, for special reasons, otherwise orders, it must refer an application for a family provision order for mediation before it considers the application: s 98(2) Succession Act; see PN [28].

3. [157]

   Indeed, Mason P in Bartlett v Coomber remarked that our legal system would collapse were it not for the fact that most disputes are resolved by agreement: at [57]. Those remarks were made 15 years ago and the notion that the legal system would struggle if many disputes were not resolved remains true today.

4. [158]

   The duties of administrators in family provision proceedings are clear. Those duties include upholding the Will (if there be one) and putting before the Court any necessary material that can reasonably be found to assist the Court: Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503 per Hutley JA (Hardie and Reynolds JJA agreeing); Warren v McKnight (1996) 40 NSWLR 390 at 395 per Hodgson J (as his Honour then was).

5. [159]

   The duties of administrators also extend to consideration of compromising family provision claims. An administrator must exercise a due sense of proportionality in the conduct of any such defence and seek to compromise a claim, if at all possible, in a way that would save both the applicant and the other beneficiaries costs. Indeed, almost two decades ago, Young CJ in Eq indicated that the duty of the administrator in defending family provision claims does not extend to doing so where it is of no commercial benefit to anyone, and regard should be had to the extent to which upholding the Will would benefit beneficiaries: Szlazko v Travini [2004] NSWSC 610 at [11]-[12] per Young CJ in Eq (remarks endorsed by Brereton J in Application of Ferdinando Scali [2010] NSWSC 1254 (Application of Scali) at [10]).

6. [160]

   Precisely the way the Court responds to the proposed settlement depends upon the manner and form in which the parties resolve the matter.

7. [161]

   Within legal parlance, there is a well-known distinction between proceedings in open court and in chambers.

8. [162]

   The (historical) distinction between court and chambers has been abolished and the business of the court, whether conducted in court or otherwise, is taken to be conducted in court: s 11 Supreme Court Act 1970 (NSW).

9. [163]

   Within the Succession & Probate Lists, the Court frequently makes orders in chambers. This is a matter which often acts to facilitate the just, quick and cheap resolution of the real issues in proceedings and saves parties the expense of engaging practitioners to appear in court.

10. [164]

    Nonetheless, dealing with matters “in chambers” does not mean that the Court takes a less exacting or informal approach to dealing with the matter: Kelly v Kelly [2019] NSWSC 994; (2019) 17 ASTLR 429 (Kelly v Kelly) at [77]-[80] per Hallen J.

11. [165]

    A matter that is generally common in all forms of consent orders which parties request a judge to deal with in chambers is the provision of documentation in a form which enables the judge (or registrar) to efficiently and justly carry out that task.

12. [166]

    Thus, where a matter is referred to mediation or where the parties intimate to the Court that they have settled a matter in principle but require some time to prepare documentation to embody or give effect to the settlement, the List Judge frequently makes an order to the following effect:

13. [167]

    The reference to “the settlement checklist” is to a document which a practitioner provides to the Court together with the proposed consent orders and evidence in support. The settlement checklist readily identifies important matters to be addressed or thoughtfully considered in the context of settlement including those going to jurisdiction or discretion. The form of the “settlement checklist” is accessible on the Court’s website:

14. [168]

    In the first instance, settlement documentation should be sent to the Court’s designated Succession List email:

15. [169]

    The email is monitored and triaged in a way which enables matters within the jurisdictional realm of the Equity Registrar to be sent to the Registrar to be dealt with and matters requiring the attention of the Succession List Judges to be sent to those judges depending upon whether they involve settlement of probate disputes, family provision disputes or mixed probate and family provision disputes.

16. [170]

    There are a number of reasons why judges dealing with such applications in chambers spend time reviewing the evidence and formal notations are made recording the affidavits relied upon by the parties and any other relevant information placed before the Court.

17. [171]

    First, as will be seen below, it is evident from the practice in the Equity Division for many years that, in cases where jurisdiction under the Succession Act is invoked as part of the proposed consent orders, the exercise of the statutory jurisdiction and ensuring there is evidence to support it is a serious one. Secondly, it is necessary to have some formal record to preserve rights of appeal.

18. [172]

    Lest anyone might think that a less rigorous approach may be taken to dealing with matters in chambers, or that requisitions from a judge in chambers (which are not substantively different from a judge asking questions in court) is a unnecessarily pedantic approach to the matter, it is not. It suffices to point to the example of Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4 (Robinson v Robinson) which was an application dealt with in chambers where the appellant sought to recant from the decision to give the release and attempted to attack the approval given on various grounds including: the adequacy of evidence in support of the release application; lack of consideration by the judge of particular matters; whether the provision made for the appellant under the deed of release was to the appellant’s advantage, was fair and reasonable and prudent; and an allegation of lack of evidence as to independent advice.

19. [173]

    The main types of family provision consent settlement applications are, or include, the following 8 scenarios.

20. [174]

    In the early years of the exercise of jurisdiction under the FPA, Young J (as his Honour then was) addressed the approach of the Court to consent orders involving jurisdiction under the FPA.

21. [175]

    In McMahon v McMahon (Supreme Court (NSW), Young J, 2 August 1985, BC8500637, unrep) (McMahon v McMahon), his Honour stated at 2:

22. [176]

    In the context of proposed consent orders, it has been said that in such cases usually there is very little needed from the parties to convince the judge that the orders are appropriate by way of amount or otherwise: Hamilton-Smith v Markby (Supreme Court (NSW), Young J, 24 May 1995, BC9504721, unrep) (Hamilton-Smith v Markby) at 3. In a practical sense, whilst that might be true in a number of cases, it should not be assumed that the Court does not appropriately scrutinise proposed family provision settlements.

23. [177]

    The Court has an inherent power to control its own proceedings including the making of consent orders, but is not obliged to act upon the request by the parties to make orders by consent: e.g. Groser v Equity Trustees Ltd (2008) 19 VR 598; [2008] VSC 163 (Groser) at [20] per Habersberger J.

24. [178]

    The Court has statutory power to make a family provision consent order in terms of a written agreement that is produced to the Court by the affected parties in relation to an application after mediation, or on the advice of a legal practitioner, and indicates the parties’ consent to the making of the family provision order in those terms: s 98(3) Succession Act. It is obvious from the terms of s 98(3) that the power is discretionary: Daley v Donaldson [2022] NSWCA 96 (Daley v Donaldson) at [65]-[66] per Leeming JA (White and Mitchelmore JJA agreeing).

25. [179]

    The approach of the Court in dealing with settlements of proceedings invoking the jurisdiction of the Court under the Succession Act or FPA has been addressed by the Court of Appeal.

26. [180]

    It must be established that the prerequisites to the exercise of the statutory power have been satisfied, and the fact that the parties have agreed between themselves on a particular outcome does not relieve the Court from being so satisfied of the jurisdictional requirements: Daley v Donaldson at [67], [68]; Bartlett v Coomber at [84]-[86] per Bryson AJA, at [67] per Hodgson JA.

27. [181]

    The comments of Young CJ in Eq in Hadley v McNamara, Re The Estate of McNamara (Supreme Court (NSW), Young CJ in Eq, 7 December 1995, BC9506808, unrep) at 2-3 addressing the same topic should be read in light of the above.

28. [182]

    However, in exercising the jurisdiction a judge will have regard to the desires and considerations of the parties and their legal representatives.

29. [183]

    In Bartlett v Coomber, Bryson AJA stated at [91]:

30. [184]

    In Daley v Donaldson, Leeming JA at [69] observed:

31. [185]

    In Bartlett v Coomber, Mason P gave some practical insight as to the occasions where the Court may reject a compromise observing that the Court’s power to do so may be exercised where the sum proposed for the applicant lies outside the range of possible outcomes, being either too low or too high, or where giving effect to a settlement may fail to effectuate specific policies of the legislation or amount to an abuse of process or otherwise offend public policy in a demonstrable way: at [56], [58], [65].

32. [186]

    In particular, the Court has a power to decline to make orders giving effect to a compromise where it is unjust to enforce the compromise or it is in the interests of justice that the matter proceed to trial, which might arise for consideration, for example, in cases where there is an issue as to the existence or the manner of exercise of the authority of counsel or legal practitioner in making a compromise: Bartlett v Coomber at [88] per Bryson AJA citing Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27 and Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528.

33. [187]

    Settlement of family provision claims where charities are affected might, in some cases, involve the Court inviting views from the Attorney General as to whether the settlement should be approved or not: Groser at [38], [44].

34. [188]

    In some cases, parties have proposed resolution of family provision proceedings in an offer of compromise. It is clear that offers of compromise can be used to address costs in family provision proceedings: e.g. Salmon v Osmond [2015] NSWCA 42; (2015) 14 ASTLR 442 (see, in particular, at [168] per Beazley P (as her Excellency then was), with whom McColl and Gleeson JJA agreed).

35. [189]

    There is an interesting question regarding the resolution of a substantive family provision claim in this way.

36. [190]

    In Hamilton-Smith v Markby, Young CJ in Eq, in a case which involved some unusual aspects, expressed some doubt as to whether that could occur, at least where a positive order invoking the jurisdiction of the Court is sought. His Honour stated at 3:

37. [191]

    On the actual facts of the case, the offer in fact involved a dismissal of proceedings.

38. [192]

    On any view of the matter, a settlement by parties by offer of compromise of a substantive family provision claim (if the terms invoke the jurisdiction of the Court under the Succession Act), in light of the matters that I have referred to above under the first type of consent settlements (see Daley v Donaldson supra), cannot be effected irrespective of the Court being satisfied of the jurisdictional requirements: see also Robertson v McCann [2023] NSWSC 159 at [88]-[90].

39. [193]

    One type of settlement of a family provision claim includes the parties agreeing to a formal discontinuance or dismissal of the proceedings often on the basis that an ex gratia payment is made to the applicant. Young CJ in Eq has noted that it has always been clear that parties can agree that proceedings be dismissed, and that the plaintiff be paid a certain sum as the price of the plaintiff’s consent to the dismissal: see Hamilton-Smith v Markby at 4-5; Mitchell v Osborne (Supreme Court (NSW), Young J, 20 May 1997, BC9702446, unrep) at 6.

40. [194]

    Where, in proceedings that have been commenced, a person is under a legal incapacity, the Court’s approval is required for settlement of the claim: s 76 CPA.

41. [195]

    The main guiding principle is whether the settlement is in the best interests of the person under legal incapacity: e.g. Brownlie v Murray [2018] NSWCA 4 (a case involving the approval of a settlement pursuant to s 76(4) CPA).

42. [196]

    The same consideration applies in family provision proceedings.

43. [197]

    It has been said that determining the best interests of the person under a legal capacity does not mean that the Court in effect hears the application for approval as if it were the substantive matter and then compares the proposed settlement with a judgment it would have given on the substantive hearing: Leonie Englefield, Australian Family Provision Law (2011, Lawbook Co) (Englefield) at 239.

44. [198]

    Nonetheless, in determining the best interests of the person under the legal incapacity, the Court ought to be satisfied that all material facts have been considered. In this regard, the Court is considerably assisted (in the same vein as occurs in applications for judicial advice) by the opinion of counsel.

45. [199]

    Whilst the judge will have his or her own independent assessment of the matter, the Court will have particular regard to the opinions of counsel and the wishes of the tutor, being conscious that family provision litigation is one of the types of litigation in which minds may reasonably differ as to the risks and outcome of the litigation: Englefield at 239 citing Kowal v Langlands [2008] WASC 27 at [10] per Le Miere J.

46. [200]

    The approval of the Court pursuant to s 76 CPA is required for the discontinuance of proceedings involving a person under an incapacity: e.g. Jennings v Jennings [2019] NSWSC 662 at [7] per Davies J.

47. [201]

    Particular imprimatur is also required in applications for approval of releases of rights by persons under an incapacity. I will address this briefly below.

48. [202]

    Family provision claims may be resolved in a context in which the parties propose a release of rights pursuant to s 95 Succession Act.

49. [203]

    A consent proposal seeking a release of rights may, in some cases, be the only substantive relief sought in the proceedings. The most frequent example of this are cases in which family law proceedings are resolved and the parties, having obtained orders in the family law proceedings, seek to have the Court approve a release of rights contained in a deed of settlement and release.

50. [204]

    Alternatively, releases of rights may be sought as an adjunct to a broader settlement seeking family provision orders invoking the jurisdiction pursuant to s 59 Succession Act.

51. [205]

    In general, people cannot bargain away their rights to make a statutory application for provision: e.g. Lieberman v Morris (1944) 69 CLR 69; [1944] HCA 13 (Lieberman v Morris) at 83 per Latham CJ, at 86 per Rich J, at 87 per Starke J, at 89 per McTiernan J and 94-95 per Williams J. That position applies in jurisdictions other than those which provide a statutory mechanism for release of rights.

52. [206]

    The jurisdiction of the Court to approve releases of family provision rights was first initiated in the early 1980s following the enactment and commencement of the FPA, which commenced on 1 September 1983.

53. [207]

    Section 31 FPA (where the FPA applies) enables the Court to approve releases of rights. The first case formally dealing with releases of rights is McMahon v McMahon in which Young J (as his Honour then was), in approving a release, outlined the initial approach of the Court (at 3-4):

54. [208]

    In Dalton v Ellis; Estate of Bristow (2005) 65 NSWLR 134; [2005] NSWSC 1252, Young CJ in Eq noted (at [25]) that in Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 at 185-186, Gleeson CJ commented that while a deliberate attempt by a potential claimant to contract out of family provision legislation, as occurred in Lieberman v Morris, would be ineffective, a deed which merely has the consequence of leaving no estate on which the legislation can act would, other things aside, be enforceable.

55. [209]

    The reforms to succession law in New South Wales brought about by the Succession Act did not substantively change the provisions regarding releases of rights. The terms of s 95 Succession Act substantially reflect the terms of s 31 FPA.

56. [210]

    The law in relation to family provision releases has been the subject of recent judicial analysis.

57. [211]

    In determining an application for approval of a release, the Court is to take into account all the circumstances of the case, including certain matters specified in s 95(4) Succession Act. The relevant principles and the sort of evidence that the Court ordinarily expects to be adduced on such applications were considered by the Court of Appeal in Robinson v Robinson (supra). The principles carefully outlined by Ward JA (as the President then was) in Robinson (at [69]-[71], [97]-[100] and see the determination at [159]-[176]) demonstrate the importance of focussing practitioners’ attention on ensuring that there is enough information placed before the Court to ensure that it is able to make a proper consideration of whether a release ought to be approved.

58. [212]

    Anecdotally, there are few applications for releases of rights involving persons under an incapacity. Practitioners should take time to reflect as to whether releases of rights are really necessary in such cases.

59. [213]

    Nonetheless, in the few cases in which the Court was required to consider such applications for releases involving persons under a legal incapacity, the principles are clear and were helpfully set out by Hallen J in Kelly v Kelly (supra). Indeed, Kelly v Kelly is an example of a case in which a release in an initial form was provisionally rejected by the Court but was subsequently approved in an amended form.

60. [214]

    Occasionally, I have seen instances where parties serve offers of compromise which include orders for family provision releases of rights, in circumstances where the applicant has not obviously given any release of rights. As between the parties themselves, it might be that an applicant considers that the proffering of a release of rights might be attractive to an administrator, or vice versa. That possibility is understandable and applicants or administrators might wish to accept offers of compromise that aim to quell all possibility of an applicant making any further claims.

61. [215]

    However, in cases where such offers are made but not accepted, ultimately, the utility of proposing an offer to resolve a claim including a release of rights as a term is very limited having regard to the fact that the Court in finally hearing a family provision claim has no occasion to make family provision orders incorporating a release of rights, where the applicant has not agreed to give such a release.

62. [216]

    Nonetheless, there will sometimes be occasion for the Court in contested proceedings to consider offers incorporating releases of rights, for example, in cases in which an applicant files a family provision claim and an administrator files a cross-claim seeking the Court’s approval of a release of rights: e.g. Russell v Quinton [2000] NSWSC 322 at [1]-[2].

63. [217]

    To facilitate a judge dealing with the claim for approval of a release of rights, practitioners are (as in the case of other consent orders) able to assist the Court by the provision of documentation in a form which enables the judge to efficiently and justly carry out that task.

64. [218]

    There are two forms of checklist known as “Applications for approval of release in estate” and “Applications for approval of inter vivos release” which are intended to both guide practitioners and assist the judge in addressing the matter. The forms are accessible on the Supreme Court Website see:

65. [219]

    From time to time, there are multiple claims on an estate in which one claim resolves and another does not.

66. [220]

    Occasionally, that occurs in the context of a matter actually listed for hearing.

67. [221]

    There are a number of ways of addressing the matter.

68. [222]

    One means of addressing the matter was explained by Master McLaughlin (as his Honour then was) in Nelson v Brennan [2002] NSWSC 979 (Nelson v Brennan). That case involved claims of two plaintiffs on an estate.

69. [223]

    In that case, the claim of one plaintiff was settled, and consent orders were handed up at the start of the hearing of the matter. The Court made those consent orders and proceeded to hear the claim of the other plaintiff (represented by other legal practitioners) whose claim had not been resolved.

70. [224]

    Technically, the consent order for provision for the first plaintiff takes effect as if the provision had been made in a codicil to the Will of the testator or testatrix: s 72 Succession Act.

71. [225]

    That consent order for the first plaintiff, if made at the commencement of such proceedings, does not necessarily have the effect of overriding any order for provision an entitlement to which the second plaintiff in the continuing proceedings might establish. Rather, the benefit proposed for the first plaintiff by virtue of the consent orders is one of the matrix of facts taken into consideration when the Court is considering the claim of the second plaintiff.

72. [226]

    In effect, the orders in the proceedings for the first plaintiff are treated as being of only provisional effect until the claim of the second plaintiff is dealt with.

73. [227]

    If, ultimately, it is held that the second plaintiff is entitled to a benefit in an amount which, together with the consent amount proposed for the first plaintiff, exceeds the funds available for distribution in the estate, then it would not necessarily follow that the first plaintiff would be entitled to receive the entirety of the agreed amount.

74. [228]

    Subject to any consideration or debate as to whether one or either of the orders was made on the basis that one or other or both of the plaintiffs would have a priority of payment over other beneficiaries, the second plaintiff would only be entitled to receive something less than the amount of provision an entitlement to which she might otherwise have established.

75. [229]

    If the amount available for distribution were not sufficient to meet both orders for provision (again, subject to debate or orders about priority payments), one consequence might be that each of the two proposed legacies would be reduced pro-rata to the extent necessary. That would be a matter for the administrator in their administration of the estate: see Nelson v Brennan at [10] per Master McLaughlin.

76. [230]

    As a practical matter, it is not ideal for a settlement to be made that is susceptible to being modified by another claim. For this reason, the Succession and Probate List Judge will ordinarily exercise caution and not readily make orders in one family provision claim where there is another unresolved claim unless there is consent to that course from all affected parties.

77. [231]

    Indeed, this has been the practice of the Succession List Judge in recent years and, ordinarily, in resolving proceedings in one claim, where another or others is or are unresolved, in the making of orders in chambers, proposed notations regarding consent of other affected parties are sought and received, prior to the finalisation of orders.

78. [232]

    I do not suggest that the above is the only way of dealing with such matters.

79. [233]

    Family provision litigation is one of the types of litigation for which an administrator who is in doubt about a resolution of the matter can consent to a settlement subject to obtaining judicial advice (for the purposes of the Trustee Act, a “trustee” relevantly includes a legal representative and the NSW Trustee and a trustee company and a “legal representative” means executor or administrator: s 5 Trustee Act).

80. [234]

    There are a number of examples of cases in which administrators have sought advice regarding settling family provision litigation. An example of one estate suffices to make the point.

81. [235]

    The case of Application of Scali (supra) concerned a large estate (approximately $16.5M). The deceased was survived by a widow and four adult children. There were a number of grandchildren. The provisions of the deceased’s Will gave the widow a form of annuity, made provision for payments to children and also, in particular, provided for payments to a number of grandchildren.

82. [236]

    The widow and the four children proposed settlement by which the widow would essentially receive the entire estate and bear her own costs. The executors sought advice as to whether they were justified in defending the proceedings or consenting to the settlement.

83. [237]

    Brereton J determined that the executors were justified in continuing to defend the proceedings notwithstanding the proposed consent orders. His Honour’s considerations in so advising included reference to the statutory duty cast upon the Court to consider the claim, the importance of freedom of testamentary disposition and the fact that the proposed consent orders did not represent the agreement of all persons interested in the estate and, in particular, not all of the beneficiaries were of full age and capacity.

84. [238]

    His Honour noted (at [14]-[16]) that:

85. [239]

    The widow’s application was heard by Macready AsJ about six weeks later and whilst she received substantial provision, it fell short of being the entirety of the estate: Hoolahan v Scali [2010] NSWSC 1349.

86. [240]

    On occasion, there are disputes between parties as to whether proceedings have been resolved.

87. [241]

    The Court has specific statutory power to resolve such disputes within the proceedings that are contested by the parties: s 73 CPA. Prior to the civil procedure reforms in 2005, the conventional position was that an application could not be made in proceedings for the purpose of giving substantive relief not sought in the originating process or substantially different to that given by the final order: Phillips v Walsh (1990) 20 NSWLR 206 at 209F-G per McLelland J (as his Honour then was).

88. [242]

    The considerations in dealing with such applications are exemplified by the decisions in Bartlett v Coomber and Daley v Donaldson.

89. [243]

    Obviously, each case will depend upon its own facts. However, the mere fact that one party has repented of a compromise that has been reached will ordinarily not be enough to preclude the compromise from being enforced provided the Court, bearing in mind the considerations referred to in Bartlett v Coomber and Daley v Donaldson, regards the compromise as being an appropriate settlement, and there are no public policy or other relevant considerations which would preclude the settlement from being enforced: Bartlett v Coomber at [65] per Mason P.

Determination of the claim

1. [244]

   The plaintiff is a child of the deceased, and thus clearly eligible. There is clearly an arguable case for making an order for provision.

2. [245]

   The proposed settlement of the parties in these proceedings does not give rise to any prospect that the estate will be insufficient to meet the claims for provision (see my comments regarding cases involving multiple claims above)

3. [246]

   Having considered the evidence, which I have formally noted on the Court’s record of proceedings, I am satisfied that in the circumstances of the case the proposed settlement of the parties is an appropriate settlement.

Orders

1. [247]

   The Orders of the Court are as follows (omitting notations of evidence):

   1. (1)

      Notes the family provision proceedings relating to the estate of the late Josef Jurak (the deceased) Darren John Yates v Luci Latham 2022/346549 (associated proceedings).

   2. (2)

      Notes that final orders were made in the associated proceedings on 31 March 2023.

   3. (3)

      Notes the acknowledgement on behalf of the solicitors for the defendant that Notation 11 in the orders made on 31 March 2023 in the associated proceedings was unintentionally incorrect.

   4. (4)

      Notes that the Order for provision for Darren John Yates in the associated proceedings provided for payment of a lump sum for him out of the residuary estate of the deceased.

   5. (5)

      Notes that the Orders below are in no way intended to impact upon the Orders for provision made in the associated proceedings.

   6. (6)

      Notes the agreement of the parties that the Plaintiff will not make any application to revoke the probate of the deceased’s Will dated 8 April 2022.

   7. (7)

      Orders in accordance with s 58(2) of the Succession Act 2006 (NSW) (Succession Act) that the time for making this application be extended up to and including the time of filing the Summons filed on 9 June 2023.

   8. (8)

      Orders pursuant to s 59 of the Succession Act that the Plaintiff receive provision out of the estate in the sum of $135 000 (Sum).

   9. (9)

      Orders by way of consequential order pursuant to s 66(1)(g), (h) of the Succession Act that:

   10. (10)

       Orders pursuant to s 65(3) of the Succession Act that no interest be paid on the Sum if paid in accordance with [Order 9(b)], otherwise, interest be paid on any unpaid part thereof calculated at the rate prescribed in legacies pursuant to s 84A(3) of the Probate and Administration Act 1898 (NSW) from 29 February 2024 until the date of payment in full.

   11. (11)

       Orders in accordance with s 65(1)(c) of the Succession Act that the provision Sum made for the Plaintiff be provided out of the part of the residuary estate of the deceased to which the Defendant is entitled pursuant to Clause 3 of the deceased’s Will dated 8 April 2022.

   12. (12)

       Notes that the Defendant, who is the beneficiary affected by the above order for provision, consents to these orders and notations.

   13. (13)

       Orders that there be no order as to the Plaintiff’s costs to the intention that he will bear his own costs of the proceedings.

   14. (14)

       Orders that the Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.

   15. (15)

       Orders pursuant to s 61(2)(b) of the Succession Act that the Court, having determined that service of a Notice of Claim on him of the Plaintiff’s application and of the Court’s power to disregard his interests is impracticable as his whereabouts are not known, has disregarded the interests of Josef Jurak (aka George Jurak), who is an eligible person who has not made an application within time in relation to the estate or notional estate of the deceased in light of evidence before the Court of:

   16. (16)

       Notes the agreement of the parties that:

   17. (17)

       Directs the Defendant within 28 days of the date of these Orders to lodge in the Registry: