Liosatos v Liosatos

HIS HONOUR: Profound purposes in law including natural justice, timely disposition of claims, and the finality and certainty of outcomes are significant threads woven into the fabric of each family provision claim addressed by the Court, not least in proposed consensual outcomes.

The plaintiff, one of the four known children of the late Andres Gerosimo Liosatos (deceased), seeks to have the Court make consent orders resolving her claim. The legislative framework for finalising the family provision claims requires establishing that persons who are required to be served with a Notice of Claim have either been so served or that applicable conditions exist such as would enable the Court to make a determination that their interests should be disregarded.

Two notification issues arise in this case. First, there is some credible but untested evidence that in or about the 1960s in Panama, the deceased fathered a number of ex-nuptial children, the identification and location of which would now be well-nigh impossible. Secondly, endeavours to formally notify one of the plaintiff’s known siblings, a brother George, by means of service of a Notice of Claim have been thwarted in that he has taken steps to relocate with the evinced intention of not being able to be traced by his sister or others associated with dealings with his father’s estate. Further, the notification attempts have been hampered by a lack of any “real co-operation” on the part of the defendant. [1]

The above circumstances invite consideration of the question of whether the Court should determine to disregard the interests of children of a deceased, who would otherwise be required to be served with a Notice of Claim, on the basis that service of any such notice is “unnecessary, unreasonable or impracticable in the circumstances of the case” within the meaning of s 61(2)(b) of the Succession Act 2006 (NSW) (Succession Act). [2]

Whilst the facts of this case are unique, and the practitioners have ably assisted the Court in addressing the above question, it is evident from my experience of matters within the Succession List that there is a large degree of uncertainty on the part of some practitioners as to:

That uncertainty has led to varied and ad hoc practice amongst practitioners regarding attempts at locating and notifying relevant persons and requests to disregard their interests.

Virtually every family provision case that is ever determined under the Succession Act involves some judicial consideration of s 61. The four matters I have listed above lie at the heart of the practical operation of the family provision. Yet there is a paucity of caselaw which analyse the second to fourth matters in a systematic way. Few, if any, cases provide any detailed guidance as to those matters.

This judgment ventures that task and seeks to bring a degree of purposive and principled coherence to search and notification requirements. That coherence is aided by an understanding of the purposes of the search and notification requirements and an awareness of the issues or obstacles which arise and impede those purposes.

My guidance, as outlined below, has no prescriptive intent, thus recognising that some degree of flexibility in practically effecting the purposes to be achieved is important.

It is convenient to address these matters by reference to a number of topics as follows:

Materially, for the reasons set out below, I am satisfied that the evidence now establishes that two eligible persons, namely the deceased’s second wife (Lilia) and his child with her (Alberto), have each been served with a Notice of Claim. I am also satisfied that the interests of George and the deceased’s ex-nuptial children (if there be any) should be disregarded on the basis that it is unnecessary and/or impracticable to serve George and that it is impracticable and unnecessary for the parties to now attempt to seek to identify, locate and serve any such ex-nuptial children.

The background to the introduction of family provision legislation in New South Wales in the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) (TFM Act) is chronicled by Rosalind F Atherton (as Professor Croucher then was) in her insightful and learned article “The Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW): Husband’s Power v Widow’s Right” (1990) 6 Australian Journal of Law and Society 97 (Atherton).

Purposive themes which are evident in the debates leading to the inception of the TFM Act include concern for protection and a recognition of women’s rights in their position as widows, redressing the imbalance, at least in part, caused by the demise of the common law right of dower (Atherton at 98) and public prominence of issues of injustice arising in a number of cases from the vagaries of testators leaving Wills making no provision or inadequate provision for persons to whom they had a moral obligation to provide. [4]

Decades passed before one of the most revolutionary reforms of estate law in the history of New South Wales occurred with the enactment of the Family Provision Act 1982 (NSW) (FPA), commencing in September 1983.

The FPA reflected the learning derived from over 65 years of experience with the TFM Act and the social change that had occurred since its enactment. Legislative purposes included a widening of both the class of persons entitled to apply for provision from a deceased person’s estate and the scope of property from which the provision might be made, [5] including notional estate (a concept in Australia unique to New South Wales). Other purposes involved a revision both of the time within which an application was required to be made [6] and the time at which the Court assessed the inadequacy of provision [7] with the FPA providing that the circumstances “at the time the order is made” should be considered. [8]

Important but less radical reforms were also made with the family provision amendments to the Succession Act commencing in March 2009. The catalyst for further family provision reform included a desire for uniformity in succession law across Australia (which despite efforts has not been achieved). [9] Purposes underlying the family provision amendments to the Succession Act included reforms to address widely held concerns about the increasing and disproportional costs of family provision proceedings. [10] The costs issue was sought to be addressed by a number of different strategies including: [11] regulation making power with respect to costs and advertising described by the Attorney General as “often aggressive, unrealistic and seeks to exploit the vulnerable”; and implementing the Government’s objective to encourage settlement of family provision matters before they go to a hearing, if possible, by requiring referral of all matters to mediation before making a family provision order unless there are special reasons why the matter should not be mediated. Those objectives are evident in the provisions of ss 98(1), (2), (4)(b) and 99(2) of the Succession Act.

Gleeson CJ in speaking of the general scheme and purposes of family provision legislation in Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 (Barns) stated at [2]: [12]

The Court of Appeal has described the link between the moral obligation of testators, family provision purposes and testamentary freedom in the following way: [15]

The above and other cognate purposes or benefits have been expressed in caselaw [18] and texts [19] in a number of ways.

Broadly speaking, the essential purposes and many elements of the original family scheme has been maintained through the various legislative changes. However, consideration of the broad scheme must necessarily recognise that whilst there is a form of common ancestry to the legislation within the six Australian states and two territories, the terms were never identical and have become increasingly diverse. [20] Nonetheless, Dixon CJ in Coates considered that the legislation in the various jurisdictions in Australia is all grounded on the same policy and that refined distinctions between the legislation is to be avoided. [21] Gummow and Hayne JJ in Barnes confirmed that approach. [22]

Initially under the TFM Act, subject to rules of Court being made, applications for provision were to be made by motion and the practice of the Equity Court was to apply. [23] The procedure under the TFM Act contemplated that individual applications for family provision would be brought by each person seeking relief. [24] However, in practice, the Court permitted two or more applications to be made on the one motion. [25] In any event where more than one application was brought (in separate proceedings), the procedure in Equity was for claims to be heard together. [26]

William Parker, the then Master in Equity, notes that, as at 1930, no rules of Court had been made and thus by s 22 of the TFM Act, applications were still made by filing a motion. [27] By 1 March 1947, TFM Act applications were to be made by originating summons. [28]

Notice of the application was required to be served by the applicant on the executor of the deceased’s estate. [29] The purpose of this was to discourage any person other than the executor from making themselves responsible for defending the deceased’s Will. [30] The TFM Act did not contain any express provision like section 61 of the Succession Act. Nor did the Rules of Court make mandatory provision for service of notice on other potential eligible persons. [31] However, the Court was empowered to order such other persons as it thought fit to be served with notice of the application. [32] Further, as a matter of practice there was recognition of the importance of establishing what other family provision claims might be made in relation to an estate. [33]

Harvey CJ in Eq explained that if more than one application was made they must be heard together because “the allowance of one application lessens the fund which will be available for the maintenance of the other”. [34] Specifically, his Honour stated that, wherever there are separate applications, the applicants or executors should apply to the Court for the consolidation [35] of the matters at the earliest possible opportunity. His Honour considered that the applicant should enquire from the executor whether he had reason to suppose that other applications were “pending or threatened”; and that if the applicant did not so inquire, the executor had a duty to inform the applicant that there were other applications pending. [36] The purpose in so doing was to ensure that costs were kept to a minimum and duplication of evidence avoided. [37]

Executors were expected to place before the Court all relevant evidence relating not only to the case generally but any circumstances which the Court should take into consideration in relation to any particular gift in the Will. [38] This included evidence as to the financial position and needs of beneficiaries. [39] Moreover, it was recognised that in special cases where very substantial benefits conferred on beneficiaries, it could be proper for beneficiaries to intervene and be separately represented, though generally such separate representation should not be necessary. [40]

Thus, there was a procedural mechanism for corralling all potential family provision claims in relation to an estate to ensure that all claims were determined at once. However, there were no specific legislative measures designed to address the inferences that should arise and the assessment the Court should make of claims where other eligible persons to whom the deceased or testator owed a “moral duty” had not at the time of hearing of a particular claim applied for a family provision order.

Different approaches to joinder of parties were taken in other jurisdictions. Thus in New Zealand, the usual practice was to name as defendants the executor and any persons who may be prejudiced by an order granting relief. [41] In England in 1940, Farwell J took the view that every person whose rights under the Will might be affected by the relief asked for, ought either to be a party or else to be represented by a party appointed by order to represent him. [42] However by 1950, Vaisey J doubted that all beneficiaries needed necessarily to be joined and expressed a more flexible approach to the joinder of affected parties, having regard at least in part to the risk or likelihood that legatees might bear the burden of an order for provision as distinct from the normal (but by no means invariable) practice that provision would necessarily come out of the residue of the estate. [43]

The assessment of claims in a context where not all eligible persons had brought claims was the subject of comment by Street J in M.A. Bourke (deceased) and T.F.M. Act [1968] 2 NSWR 453 (Re Bourke). In that case, the testatrix left a widow and nine adult children with the only substantial asset of the estate being a matrimonial home in which the testatrix had given a life interest to the widower and the remainder for religious purposes. One of the adult children, a married daughter, made an application for family provision. The other children and the widower all said that they did not wish to challenge the Will or make any claim on the estate. [44] The widower had no assets apart from his interests as life tenant and his income was limited to the old age pension. [45] The eight other children were in varying degree of financial need, similar to the position of the applicant. [46]

Street J dismissed the claim. His Honour addressed a submission that the Court should only consider the testatrix’s duty owed to the applicant, as none of the other eight children and the husband came forward to claim the existence and breach of any duty to them. Whilst his Honour considered that the family provision jurisdiction involved the Court passing judgment on the claim as between the testatrix and the applicant, the assessment of the claim could only be determined after an appreciation of all other testamentary obligations. [47] His Honour went on to state as follows: [48]

Relevantly, two points may be observed. First, his Honour noted that the fact that no other claimant had then come forward did not justify the Court in placing aside the necessity of considering the “moral duty” which the testatrix owed to other family members. Secondly, his Honour (in obiter) admitted of the possibility that other claims might be made and that the prospect of such claims having to be met out of the estate was something that the Court could not ignore.

One explanation for the above position is given by Dickey to the effect that the moral claims of others to provision from the deceased’s estate must be taken into account if they have not received adequate provision but are entitled to apply. This was said to be because under the TFM Act the adequacy of any provision made for an applicant depends upon factors existing at the time of the deceased’s death and not on whether the potential applicant for family provision chooses to commence proceedings. [49]

Re Bourke, a case otherwise unremarkable in and of itself, became a catalyst for public comment regarding deemed uncertainties and injustices in the determination of claims. One particular perception of the decision in Re Bourke is that it had the effect that the Court was obliged to assess claims of certain applicants on an artificial or at least undesirable basis. Thus, it was said: [50]

In the 1970s the New South Wales Law Reform Commission (LRC) was given a reference to review family provision law. [51]

The LRC published a Working Paper in January 1975, the subject of extensive distribution and comment, [52] and produced LRC Report 28 in 1977, recommending a draft Family Provision Bill (Draft Bill). [53] The Chairman of the LRC re-examined the original proposals and a proposed bill for a Family Provision Act (and cognate legislation) was introduced into the New South Wales Parliament in November 1982. [54]

Dilemmas arising from the decision in Re Bourke were identified by the LRC by reference to as follows: [55]

Section 9 of the Draft Bill addressed notification to potential applications as follows: [57]

An earlier form of the Draft Bill which formed part of the Working Paper contained a provision enabling the Court to order that a person be joined as a party to proceedings under the proposed Act if it is necessary or desirable to ensure that all matters in dispute are effectually and completely determined and adjudicated upon. [58]

The LRC acknowledged that the perception of Re Bourke gave rise to some practical difficulties. However, it considered that the proposed ss 9(3) and (4) set out above provided the means for overcoming them. The intent was to address the perceived injustice arising from problematic cases such as the one posited in the LRC Report 28 [59] by allowing the Court to deal with an applicant’s claim on the footing that an eligible person (such as a widow) who had not applied for provision had not been left without adequate provision. [60]

The Explanatory Note for the Family Provision Bill 1982 stated in relation to clause 20 that it “permits the Court to disregard the interests of persons who have not made application for provision”.

In his Second Reading Speech, the Honourable Francis John Walker made no specific mention of clause 20. [61] However, the Honourable David Paul Landa stated that “Clause 20 will allow the court to disregard the interests of any eligible persons who have not made application in relation to the deceased person. However, notice must be given to such eligible persons unless the court is of the opinion it would be unreasonable or impracticable to do so.” [62]

The FPA commenced on 1 September 1983. [63] Section 20 of the FPA as enacted did not reflect the terms of the Draft Bill (recommended by the LRC) but did reflect the drafting of the final form of the Bill as introduced to Parliament. It was in the following form:

The effect of s 20 as originally enacted was addressed by leading Equity judges within a few years of the commencement of the FPA.

In Luciano v Rosenblum (1985) 2 NSWLR 65 (a decision more frequently cited [64] as providing guidance in relation to provision that may be appropriate for a widow), Powell J opined that it was “tolerably plain” that the terms of s 20 were directed to fulfilling the function of overcoming problems likely to be caused by the decision in Re Bourke. It was his Honour’s opinion that it was not directed towards enabling the Court to disregard “the claims of those to whom the deceased may have a moral obligation which obligation had been adequately discharged by the provision made for that person in the deceased’s will”. [65]

Section 20 was amended in 1985 by Statute Law (Miscellaneous Provisions) Act 1985 (NSW), [66] which commenced on 11 April 1986. [67]

The amendment was in two parts.

First, it replaced section 20(2) with the following wording:

Secondly, it omitted section 20(3).

The catalyst for the amendment was in part alluded to in the Explanatory Note accompanying the Statute Law (Miscellaneous Provisions) Bill 1985 which stated relevantly that: [68]

The Honourable Terrance William Sheahan (Attorney General) in his Second Reading Speech stated: [69]

The Honourable Barrie John Unsworth in his Second Reading Speech stated: [71]

The amendments effected two purposes referred to in the Explanatory Note and Second Reading Speeches.

First, the original wording of s 20(2) envisaged that the “notice” to be served on eligible persons would be simply in a manner determined by the Court. The change by adding the word “form” fixed the type of notice to be served by reference to both such manner and form prescribed by rules of court.

Secondly, the amendments introduced the adjective “unnecessary” as an additional conditional ground for the Court to disregard interests.

However, by comparison of the original and amended provisions of s 20 a further third change is evident.

Relevantly, s 20(3) (original form) provided (emphasis added):

Conversely s 20(2)(b) provided (emphasis added):

The deletion of the entirety of s 20(3) and the amendment of s 20(2) saw the task of the Court’s decision described from being an “opinion” to a determination.

The Macquarie Dictionary, online ed, provides various choices of meaning for the noun opinion, including, relevantly:

The second choice of the word “determined” in the Macquarie dictionary is stated as having the meaning “decided; settled; resolved”.

The purpose for that change of wording is not evident. No cases, so far as I am aware, have analysed or discussed the change.

Reviewing caselaw pre and post the amendments I have been unable to discern any material difference between judges forming an “opinion” or making a “determination” in the Court’s task in approaching and applying s 20 of the FPA.

The judge in each application of s 20 of the FPA was called upon to form an opinion or determination in light of the relevant facts.

Many cases applied s 20 of the FPA simply according to its terms without any particular analysis of its operation. [73] However, a few cases elaborated on its operation.

In Hill v Hill (Supreme Court (NSW), Young J, 19 May 1997, unrep), his Honour stated: [74]

Master McLaughlin in Seitz v Morgans [2001] NSWSC 1188 at [49]-[51] expressed the view that s 20 of the FPA was directed at issues arising from multiplicity of claims and that “it is intended by that provision that all claims against an estate should be heard and determined at the same time”. Further, the Master considered that the Notice of Claim procedures were consonant with that policy.

Master Macready in Zirkler v McKinnon [2002] NSWSC 285 (Zirkler) gave some insights as to the purposes of s 20 of the FPA, stating at [35]-[37]:

In Coric v Grotto; Nelson v Grotto; Estate of Late FA Grotto [2007] NSWSC 1080, Bryson AJ addressed the operation of s 20 of the FPA. His Honour (without deciding the question of whether s 20(2) of the FPA exhaustively set out the considerations the discretion on which the Court’s power to disregard the interests of eligible persons is to be exercised), stated:

His Honour ordered that the proceedings be removed into the Court of Appeal. [75] However, the construction issue stated by his Honour regarding s 20 does not appear to have been ever determined by the Court of Appeal, there being apparently no published judgement addressing the appeal. [76]

Reform proposals of family provision law in the 1990’s and 2000’s addressed s 20 of the FPA.

In 1997, the Queensland Law Reform Commission in its Report to the Standing Committee of Attorneys General on Family Provision, curiously stated: [77]

What prompted that statement and exactly what it means is, to me, unclear. If it was intended to convey that some claimants engaged in untoward use of s 20 of the FPA for advantage, such alleged use is contrary to my experience. Occasionally, judges comment on tactics by family provision litigants. One such instance involved eligible persons bringing proceedings (later discontinued) as a tactic of applying pressure upon a litigant to resolve a claim, which were the subject of adverse comment. [78] However, I am not aware of any purported attempts of abusing s 20 of the FPA (nor indeed of s 61 of the Succession Act). No cases were cited for this proposition by the Queensland Law Reform Commission.

Relevantly, the NSW LRC in its Report 110 (2005) – Uniform Succession Laws: Family Provision (May 2005) (LRC Report 110) addressed the issue of how other possible applicants should be considered in the Court’s determination of family provision claims. LRC Report 110 proposed changes to s 20 of the FPA in the form of a recommended Family Provision Bill 2004. The draft provision, namely cl 12, was essentially in the same form as s 61 of the Succession Act as enacted. [79]

The LRC Report 110 stated at [2.63]–[2.64]:

Reports produced by the National Committee for Uniform Succession Laws and endorsed by the Standing Committee of Attorneys-General in 1997 and 2004 and recommendations in LRC Report 110 were recognised as leading to the introduction of the Succession Amendment (Family Provision) Bill 2008 (NSW). [83]

The Explanatory Note to the Bill stated regarding the proposed s 61 as follows:

On 26 June 2008, the Bill was introduced in the Legislative Council. The Second Reading Speech of the Attorney General did not address the terms of the proposed s 61. [84] However, on 24 September 2008, in resumed debate on the Second Reading, the Honourable John Ajaka observed that: [85]

On 25 September 2008, the Bill, having been received from the Legislative Council, was introduced in the Legislative Assembly. Proposal for agreement in principle of the Bill was set down as an order of the day for a future day. [86] That occurred on 21 October 2008. The speeches on the motion for agreement in principle did not address proposed s 61. [87]

The amendments in Ch 3 of the Succession Act, which include s 61, commenced on 1 March 2009. [88] They apply to the estates of persons who die on or after that date. [89]

Currently, different jurisdictions have different mechanisms for addressing the notification requirements to various people who may be affected by proceedings before the Court. [90]

There are no provisions to the precise effect of s 61 in other states and territories. The position is summarised by Professor Dal Pont, who states: [91]

The proper construction of s 61 of the Succession Act involves looking at the text, context and purpose, but in the first instance one looks at the context. [92] Caselaw dealing with earlier forms of family provision legislation may provide some degree of insight as to how the question of construction may be approached, but is not conclusive of the issue. [93]

Family provision legislation has been described by the High Court in terms as being remedial in character and to be construed “so as to give the most complete remedy which the phraseology will permit”. [94] That approach to construction was affirmed by Gummow and Hayne JJ in Barns, [95] referenced by the New South Wales Court of Appeal in Page. [96]

However, whilst the overall purpose of the Act is remedial, that does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the relevant provision must be identified. [97] Self-evidently certain aspects of family provision legislation are limiting. [98] In particular, legislation which is beneficial to one person may impose a burden on others; in such circumstances a critical issue may be to identify how far the evident purpose or principle (remedial or otherwise) extends. [99] The context and purpose of family provision legislation as well as the particular formative developments that led to the current form of s 61 of the Succession Act are set out above.

Broadly speaking, the history of family provision law discloses some legislative awakening to the need for Courts to have regard to the position both of beneficiaries and other possible applicants in considering and determining family claims of an applicant.

Initially, under the TFM Act, no specific legislative position regarding this was manifest. The FPA provided legislative mandate to the Court disregarding interests of non-applicant eligible persons on permissive terms.

I will elaborate more on the operation of s 61 below. However, at present it suffices to signal that, whilst the remedial nature of the legislation in general is undoubted, three important purposes of s 61 are evident, namely:

Those purposes are reflected in the content of Notices of Claim, as explained below.

Further, whilst those purposes also underpinned s 20 of the FPA, the introduction of the Civil Procedure Act 2005 (NSW) (CPA) [101] and Chapter 3 of the Succession Act highlighted other purposive themes which inform the construction and application of s 61. Namely, affected parties in family provision litigation being encouraged to settle claims [102] and conducting claims without excessive costs or costs disproportional to the size of the estate and complexity of the dispute. [103]

The text of s 61 by reference to both its general function and structure and its specific parts, including how it has been construed and applied by the Court, are addressed by me under a number of subheadings immediately below.

Section 61 refers to a few different types of determinations.

Thus, if a required Notice of Claim has not been served, the Court may under s 61(2)(b) determine that service of the notice is unnecessary, unreasonable or impracticable which “determination” permits the Court under s 61(1) to “disregard” the interests of nonapplicant eligible persons [104] which in turn informs the final "determination" of the family provision application.

The precise juristic nature of a s 61(2)(b) “determination” and a s 61(1) “disregard” finding need not for present purposes be deeply probed and settled. It suffices to observe that those findings or decisions may be seen as steps (ancillary or otherwise) in the overall process of reasoning which leads the Court to make a final determination of a family provision order.

Frequently, in contested proceedings, the Court makes no formal order or notation recording a s 61(2)(b) “determination” and a s 61(1) “disregard” finding. The fact that the Court has done so might only appear in the reasons for judgment for the final orders or merely be evident from the transcript of the hearing.

Conversely, in the case of formalisation of consent orders sought by the parties to be made in chambers, it is common practice for the Court to make a notation or order recording a s 61(2)(b) “determination” and a s 61(1) “disregard” finding. Such notations are not normally to be construed as being independent final orders of themselves. Rather, they are generally to be understood as a positive indication that the Court has considered those s 61 matters and resolved to act in a particular way in finally determining the family provision application.

Occasionally and regrettably, some cases are finalised without Notices of Claim having been served and/or mistaken information is provided to the Court leading to s 61 notations being incorrectly recorded. Such occurrences do not invalidate the outcome of the case per se. However, they do lead to blemished outcomes, justice being imperfectly administered and the risk of new litigation against the estate with increased further cost and impost upon it, [105] results which the Notice of Claim procedures are designed to avoid.

Leaving aside some insubstantial differences with wording, the only change effected by s 61 of the Succession Act to the terms of s 20 of the FPA was to specifically address a distinction between beneficiaries and potential family provision applicants.

The change gave formal recognition to the position of beneficiaries in the Court’s consideration of determining family provision claims. I describe it as a “formal” recognition because it would be wrong to say that the Court’s former approach to the interests of beneficiaries was dismissive or indistinct. Family provision claims determined under the FPA regime did not involve the Court disregarding interests of beneficiaries.

However, beneficiaries' interests are not unduly weighted. Family provision legislation is given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom. [106] It is not confined by notions of reluctance to interfere with freedom of testation. Whilst there may be some tension between views expressed by Court of Appeal judges in the exact effect of testamentary freedom in the evaluative assessment of claims for family provision orders, [107] such freedom is one of the matters factored into the assessment called for by s 59. [108] The weight accorded to the testator’s testamentary wishes will depend upon the facts of any given case for the reasons so clearly explained by White J in Slack v Rogan. [109]

Section 61 distinguishes between the interests of beneficiaries per se and nonapplicant eligible persons.

It is appropriate to identify what “interests” are being referred to.

It is generally crucial to the determination of family provision claims for the Court to make a finding or have certainty, whether by agreement of the parties or following contest, as to the provision that has been made for beneficiaries of the estate, whether pursuant to a Will or intestacy.

In many cases this is not a vexing issue because a grant of probate or letters of administration has been made and the position regarding entitlements of beneficiaries is clear.

Nonetheless, a number of family provision claims are progressed in a context in which there is some uncertainty over the beneficiaries’ entitlements arising from a “probate” dispute over which of a number of testamentary instruments of the deceased embodies the final testamentary act of the deceased or whether on intestacy arises. This uncertainty is managed by case management mechanisms such as proceeding with the probate dispute first, or concurrent hearing of both probate and family provision claims or the Court with the consent of the parties proceeding upon an assumed position as to the disposition of the deceased’s estate.

Ultimately, the Court proceeds to determine a family provision claim by finding (after contest or by agreement of the parties) that one or more persons or entities are or will be entitled to identifiable parts of the deceased’s property subject to completion of the process of due administration, including the outcome of the family provision claim. [110]

The interest of beneficiaries that may not be disregarded under s 61(1) is the above-mentioned interest of a beneficiary qua beneficiary rather than as a potential family provision applicant. The distinction is important because beneficiaries who are eligible persons may be potential applicants if they consider claiming additional or altered provision to their entitlement from the deceased’s estate.

On the other hand, the nature of the interest of an eligible person is statutory based, being a right to seek a determination by the Court of his or her application for a family provision order, pursuant to the statutory regime. That interest confers no property right until such time (if at all) that a positive order is made under the Succession Act conferring such an interest. [111]

In New South Wales, notwithstanding that the effect of a family provision order is to operate as a codicil to the deceased’s Will (s 72 of the Succession Act), the nature of a family provision order is different to a provision under a Will arising from the deceased having nominated a person as a beneficiary. The two kinds of interests spring from different sources and remain distinct, despite their similarities. [112]

The Court’s power to disregard the interests of non-beneficiary non-applicant eligible persons is enlivened by: service of “notice of the application… in the manner and form prescribed by the regulations or rules of court”: s 61(2)(a); or a determination under s 61(2)(b).

I addressed the family provision notification requirements and the consent jurisdiction in Jurak [113] and will below specifically focus on the service and notification requirements relevant to s 61, elaborating on some specific issues.

The precise origin of the wording of s 20(2)(b) of the FPA and s 61(2)(b) is unclear. It does not appear in the 1977 Report. It first appeared in the draft of the Family Provision Bill 1982 (NSW). The Honourable David Paul Landa referred to it in the Second Reading Speech in the Legislative Council. [114]

It will be recalled that the wording of s 20(2)(b) FPA initially only contained the two adjectives “unreasonable or impracticable”. The third adjective “unnecessary” was added in 1985, having operation from 1986. [115]

The adjectives “unnecessary, unreasonable or impracticable” are used to describe instances in which the Court is permitted to determine that service of a Notice of Claim is not required in the circumstances of the case and the relevant interests may be disregarded under s 61(1).

The precise meaning of those adjectives have not been the subject of any singular detailed analysis in family provision caselaw.

The plain English meaning of those words are potentially very wide in content.

The online edition of the Macquarie Dictionary provides that “unnecessary” means “not necessary; superfluous; needless”. “Superfluous” is, in turn, defined as “being over and above what is sufficient or required”. “Unnecessary” is contrasted to the adjective “necessary”, which means “that cannot be dispensed with”.

“Unreasonable” has the following relevant definitions: [116]

“Impracticable” means “not practicable; that cannot be put into practice with the available means”. [117]

In Ciric v Ciric, [118] Hallen J stated in relation to “impracticable”: [119]

The use of the conjunction “or” in the grouping of “unnecessary, unreasonable or impracticable” in s 61(2)(b) appears to indicate that the words are not intended to form a composite expression. [120] However, their grouping together does admit of the possibility that their meanings may overlap to some degree.

I have referred above to the historical and legislative context in which the disregarding provisions evolved and the disclosed purposes therein.

Precisely why the adjectives “unreasonable” and “impracticable” were initially chosen to be the two terms to ground the Court’s determination to disregard interests is unclear and elusive.

It seems to me likely that the choice of the word “impracticable” in the initial expression “unreasonable or impracticable” was intended to give the Court a type of decision-making flexibility which the Court had in relation to substituted service of court process in civil proceedings generally, [121] although directed to a different end.

In the case of substituted service pursuant to r 10.14 of the Uniform Civil Procedure Rules 2015 (NSW) (UCPR), the Court in exercise of that power mandates a type of service other than personal service which, in the context of the case, achieves a sufficient degree of likelihood that it will bring the document to the notice of the person concerned. [122]

In considering the condition of “impracticability” in s 61(2)(b), the decision maker may well have regard to unsuccessful attempts at service. However, the determination is directed at whether the interests of non-applicant non-beneficiary eligible persons should be disregarded where notice has not been served on the person, rather than fixing upon a type of service that will bring the notice to the attention of the concerned person.

Some insight as to the purpose of the adding of “unnecessary” in 1985-1986 appears from the Second Reading Speech of the Honourable Terrence William Sheahan (Attorney General), namely that it “will make it easier for the court to determine that it would be unreasonable to cause a notice to be given and thus avoid unnecessary waste of time where there is no expectation that any other eligible person would be likely to make an application under the Act”. [123]

An analysis of case law regarding the use of s 61 does not reveal any great precision as to the sort of circumstances that enable the Court to make a determination that the adjectival terms “unnecessary, unreasonable or impracticable” exist either individually or in some combination with each other.

The volume of cases that have been concluded by reference to determinations under s 20 of the FPA and s 61 of the Succession Act are legion. The barriers to a detailed analysis of why one or more of the adjectival terms were used are not only the time and effort it would involve but also that by far the majority of them are cases in which consent orders have been made without any published reasons for judgment.

In some of the published reasons all three adjectival terms “unnecessary, unreasonable or impracticable” are used as a basis for the exercise of the power to disregard. [124] There are also cases where service has been “unreasonable or impracticable” [125] or both “unnecessary and impracticable”. [126]

Clearly, one aspect which might inform the Court’s determination that it is “unnecessary” to serve a Notice of Claim is that mentioned in the Second Reading Speech of the Attorney General in November 1985, namely a lack of expectation that any other eligible person would be likely to make an application, and accordingly service would be an unnecessary waste of time.

Many examples of service being “unnecessary” relate to former spouses. A common thread in such cases justifying a finding that service is “unnecessary” is where the deceased has been separated or divorced from the former spouse for many decades and the former spouse has remarried and/or there has been a property settlement. This was the case in O’Leary v O’Leary & Eccles, [127] Pletersky v Pletersky, [128] Stone v Stone, [129] Stanford v Stanford, [130] and Plummer v Montgomery. [131]

The fact that an eligible person is a party to the family provision proceedings will not necessarily obviate the necessity for service of a Notice of Claim on such person. However, where it is evident that all the purposes of serving a Notice of Claim are substantively met, the Court may in such a case dispense with any requirement for service on such a party. [132]

Other (less common) instances of service being “unnecessary” include: (a) where the person to be served has given evidence in the proceedings or had put his or her financial circumstances in issue, and thus was clearly aware of the proceedings; [133] (b) where even if the proposed recipient were to be located and were to be served with a Notice of Claim that the likelihood or even possibility of such person succeeding in any claim which might be made against the estate is regarded as being minimal; [134] and (c) where a distribution has been made to the person required to be served and that person has executed a deed of settlement containing a release or otherwise substantively binding themselves not to make a family provision application. [135]

Necessity is not an isolated thing which can exist in a sort of vacuum. [136] In the context of the family provision scheme, one aspect of what s 61(2)(b) contemplates is the “necessity” of doing justice to the applicant without any perceptible risk of injustice to the potentially eligible person who has not made an application (whether that be because the person is already aware of the proceedings, because the person’s potential claim for provision would be weak or for some other reason).

The adjectival term “unreasonable” was used in one of the first reported cases under the FPA, namely Lloyd v Nelson. [137]

In circumstances where an administrator had served a Notice of Claim as required by the SCR but defective under s 20(2) of the FPA, Needham J determined that it would be “unreasonable” for the administrator to serve again a notice complying with s 20(2) where there was nothing in the evidence to raise any expectation that any other eligible person would be likely to make an application. [138] That was in a context in which none of the persons who had in fact been served with a (defective) Notice of Claim had given evidence of their financial circumstances or made any claim against the estate. [139]

Intriguingly, despite that initial instance of use of the adjectival term “unreasonable” in Lloyd v Nelson, it is difficult to find any further cases in which the Court has determined to disregard a person’s interests under s 61 solely based on determining that service of notice is unreasonable. On one occasion, it has been relied upon in conjunction with impracticability. [140]

However, one may think of circumstances in which service would not be impracticable but, nonetheless, service would be unreasonable because the time and cost that would need to be spent in locating and serving the person would be out of all proportion to the size of the estate and the strength of that person’s potential claim. In this way, matters informing the state of “unreasonableness” may come to resemble or bear upon the state of being “unnecessary”.

Some broad themes emerge when surveying published reasons for judgment. The history of the application of the adjectival terms in s 61(2)(b) as noted above reveals that: (a) the “unnecessary” term is often relied upon where there is no evidence of attempt of location of an eligible person or service but rather an inherent likelihood that the person to be served will have no prospect of a successful claim; [141] (b) the “impracticable” term is generally relied upon where there is some attempt at location of a proposed recipient and attempt at service but it has been unsuccessful; [142] and (c) the “unreasonable” term is relied upon in limited cases for example where service has been effected but is technically defective and the intended recipient is cognisant at least that there are pending proceedings. [143]

The above observations provide a useful guide as to what, in any given case, might suffice to enliven exercise of the s 61 power by reference to the adjectival terms. However, each of the three terms have potentially broad meaning which defy exhaustive definition and their scope is not necessarily mutually exclusive.

What can safely be stated is that having regard to the context, purpose and text, s 61(1) and (2)(b) gives the Court a very broad scope for making an assessment as to whether it should determine to disregard the interests of a relevant person who has not been served with a Notice of Claim.

The verb “disregard” means to “pay no attention to; leave out of consideration”. [144]

The express exclusion of the interests of beneficiaries in s 61 means that in assessing an applicant’s claims, the Court must pay due regard to the fact that a beneficiary is entitled to rely on the terms of the deceased’s will, or on the rules of intestacy, and the fact the beneficiary is a chosen object of the deceased’s bounty. [145] However, that does not mean that beneficiaries are immune from bearing the burden of any family provision orders.

There is no legislative compulsion for beneficiaries (who are not making a claim) to make financial disclosure of their circumstances. [146] They are entitled to elect not to make disclosure about their financial resources and material needs. [147]

Where beneficiaries do not make a disclosure of their financial circumstances, certain inferences arise. Of these inferences, it has been said that: “the Court may assume that they do not wish their financial resources (including earning capacity) and financial needs, both present and future, to be taken into account”; [148] “the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased”; [149] and the beneficiary “had no need for provision from the estate and, on the comparative basis, he was significantly better off than [the applicants]”. [150] Put in somewhat different terms, it has been said that the Court proceeds effectively on the basis that such a beneficiary is not contending that its financial circumstances are such as to reduce or limit what might be assessed as proper provision for the applicant. [151] Thus whilst the beneficiary may not assert a competing financial claim on the bounty of the deceased, it may nonetheless assert a claim as a chosen object of the deceased’s bounty. [152]

The justification for those inferences is an assumption that the executor has acted in accordance with his or her duty [153] to lead such evidence, [154] if relevant.

The rights of eligible persons to make any family provision claim are not nullified by s 61. Rather, in assessing the applicant’s claim, the Court is on terms permitted to proceed on the footing that such eligible persons, if they have not made a claim by the time the Court determines the claim(s) that have been made, have not been left without adequate provision. [155]

The task of the Court in s 61(2)(b) is described by the verb “determines”. The same core word only expressed in the past tense “has determined” was used in the amended form of s 20 of the FPA. Earlier I commented that the subtle shift in wording in the amendments to s 20 of the FPA from “in its opinion” to “has determined” did not materially change the judicial task.

Essentially, under s 61 whether the Court may disregard “any such interests”, namely the interests of nonapplicant eligible persons, involves the judge, in light of the purposes of s 61, having regard to the circumstances of the case, considering the facts and then determining whether service of a Notice of Claim is “unnecessary, unreasonable or impracticable”.

That assessment, by reference to the circumstances of the case, is based on evidence which at times may not be complete or ideal but nonetheless sufficient.

By reference to the power of the Court to disregard the interests of non-beneficiary non-applicant eligible persons being qualified by the use of the word “may” in s 61(1) and (2), in Dunne v Dunne [156] Young AJ expressed the view, albeit obiter, that the Court’s power to disregard is discretionary. [157]

In Dunne, the plaintiff and the defendant (to whom the deceased left the entirety of his estate) were two children of the deceased. [158] The executor had given notice to the deceased’s three other surviving children and they had provided evidence in the proceedings but the notice to them was defective in that it did not alert them of the Court’s power to disregard their interests. The defendant “did not wish to have his financial circumstances considered as a factor in this case”. [159] The other surviving children did not wish “to upset their father’s will” although his Honour noted that there was “some evidence to suggest the two of them are not in wealthy circumstances”. [160] His Honour in assessing the claim rejected a submission from the plaintiff’s counsel that that evidence could “have nothing to do with the case”. [161] His Honour explained s 61 in the following terms:

The dilemma in Dunne related to the use to be made of evidence which the defendant executor had adduced in affidavits from nonapplicant eligible persons. Precisely what is meant by the verb “may” in s 61 has not, to my knowledge, been the subject of any detailed judicial exposition. There is no need in this case for me to decisively comment on that. It suffices to note that not uncommonly the Court determines applications in which some evidence is adduced bearing upon the circumstances of a non-beneficiary non-applicant eligible person and the Court applies s 61 according to its terms.

If a relevant person has been identified as being a person required to be served, a notification issue might occur for various reasons, including failure by the searching party:

Further, if the relevant person to be served is under an incapacity, a service failure might occur if the relevant stead [162] who is permitted to be served on behalf of the incapacitated person fails to act in their interests.

I next move to set out the fundamental aspects of service of Notice of Claim, then identify the main types of search options and their limitations before addressing some guidance as to the practical application of search and notification requirements.

The content of Notices of Claim alerts the recipient to three important things, [163] namely:

It can be readily seen that the content reflects the s 61 purposes including relevantly natural justice to affected or interested parties, timely disposal of claims and finality of litigation. Because the content highlights those purposes, the Court may under s 61(2)(a) disregard the interests of a recipient of a Notice of Claim, confident that a recipient who fails to make a claim has done so by reference to key information allowing the recipient to make an informed decision. [166]

The above purposes may be thwarted by various failures, including not identifying a relevant person required to be served under the Rules. [167] One of the most frequent failures is with respect to serving former spouses of a deceased. [168] The power of the Court under s 61(2)(b) covers cases in which Notices of Claim have not been served for any reason, not merely unwitting failures.

For family provision claims under the Succession Act, the form of a Notice of Claim is prescribed by cl 4(3) of Schedule J – Succession Act of the SCR. For the convenience of practitioners, that form is reproduced in Annexure 2 of the current Practice Note (Practice Note SC EQ 7 (Practice Note)).

The persons required to be served are prescribed by cl 4(2) of Schedule J – Succession Act of the SCR. There are three categories of persons required to be served: (a) persons who are or may be eligible persons; [169] (b) every person who is otherwise entitled to share in the distributable estate of the deceased; [170] and (c) any other person mentioned by the plaintiff in his or her Notice of Eligible Persons. [171]

Occasionally, but not as rarely as some people might think, a plaintiff will nominate a person who is neither self-evidently an eligible person nor a plausible contender to be an eligible person. The main instance of that is where a plaintiff nominates one or more stepchildren who have never lived with the deceased and thus cannot by any measure be described as person(s) who were members of a household of which the deceased was a member and at some point dependent upon the deceased. [172]

There is no specific requirement for personal service of Notices of Claim. [173] This is in distinction to service of Notices of Proceedings in probate proceedings. The notification requirements in each of those type of proceedings is separately provided for to meet the specific objects of the jurisdiction. [174] Notices of Claim are served in a variety of manners. This includes personal service, service by post and service by email. I will elaborate below on the practical aspects of service other than by personal service, particularly email service.

There is no prescribed time for service of Notices of Claim. The Practice Note envisages that the Registrar will make directions for the filing and/or service by the administrator of an affidavit addressing certain matters including relevantly the service of any applicable Notices of Claim and the method by which such notices has been given. [175]

It is good and commendable practice for Notices of Claim to be served by administrators as soon as reasonably practicable once the commencement of a family provision claim has been brought to their attention.

Relevantly to Notices of Claim, whether one talks of notification in terms of procedural fairness or natural justice, a prime concern of the law is to avoid practical injustice. [176] Expeditious services of notices facilitates both procedural fairness and substantive justice to relevantly interested or affected parties. Failure to serve notices in a timely way runs the risk of a just outcome being jeopardised or impoverished to some degree.

A large or at least statistically significant proportion of family provision proceedings (including this case) are commenced at or close to the expiry of the limitation period. Therefore, even if administrators act promptly to serve Notices of Claim, often they will be served after the expiry of the limitation period for bringing a family provision claim.

Crucial but not necessarily fatal ramifications flow from service after the expiry of the limitation period. The recipient (if otherwise eligible) is, in a sense, deprived of the opportunity to bring family provision claim as of right. If the recipient then makes a claim he or she will need to either persuade the Court to make an “otherwise order” on sufficient cause being shown or persuade the other parties to consent to the application being made out of time. [177]

Thus, an important interaction as between ss 58 and 61 of the Succession Act comes into operation when Notices of Claim are served after the expiry of the 12 month limitation period.

Each case for an order permitting family provision claim to be made out of time will depend upon its own facts. However, subject to context, the belated service of a Notice of Claim on an eligible person may provide a reason (and in some cases a compelling reason) forming part of the Court’s determination to permit the claim to be brought out of time. [178]

A party to civil proceedings (which includes family provision proceedings) is under a duty to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings, and to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court. [179]

Plaintiffs and administrators, by dint of their separate sources of knowledge, will ordinarily between them be able to identify both the persons required to be served and the addresses at which they may be located. [180]

Examination of records of the deceased and communication with family, friends and acquaintances of the deceased will generally be the first port of call for an administrator in attempting to obtain location details for a person to be notified.

Those records or that communication will generally reveal a current or last known residential address, phone number and email address for the person to be contacted. In many cases that will be sufficient to enable the person to be located.

In other cases, of which this is one, location of the person to be served is more challenging.

It is evident that legal practitioners involved in family provision claims have differing degrees of experience and resources in dealing with cases in which persons need to be located for the purposes of service and undertaking searches.

Without attempting to be exhaustive I set out below the main sorts of searches which are frequently used by solicitors both in locating persons to be served and providing evidence to the Court of attempts at service.

Internet searches can reveal details of locations for persons; however, quite frequently, it is a blunt instrument to do so.

Internet searches have distinct limitations. The very large volume of material on the Internet inhibits precise searching. It is said to contain over a billion websites, [181] and well over 100 zettabytes (a trillion gigabytes each) of data. [182] Further, many sites are not maintained either at all or frequently [183] and accordingly the information on the sites can become out of date quickly.

The origins of social media have been said to be traced back to roots in Morse code and the emergence of ARPANET in the late 1960s. The evolution of these platforms has been described in the following terms: [184]

It is not an understatement to say that social media has proliferated over the last decade. The number and speed with which new platforms are developed has the impression of burgeoning exponentially. Some platforms accordingly have a limited ‘shelf life’. Indeed, legislation struggles to keep up with regulation of such platforms.

Social media searches are a frequent method of attempting to locate persons who have otherwise been separated over years and geographic boundaries.

The proliferation of such profiles and number of persons using them ironically provides some degree of limitation in the usefulness of such platforms in locating the relevant person. Often searches reveal multiple profiles of persons with any given name. Nonetheless there are mechanisms for attempting to filter through profiles to narrow searches to locate the relevant person. Further, searches across social media platforms have a limitation that it may well be barren if the person who sought to be located does not engage in social media platforms.

Trove is said to be a “single point of entry to a treasure trove of artefacts, curiosities and stories from Australia’s cultural, community and research institutions” and includes more than 14 billion digital items on any topic, providing access to digital collections from hundreds of partners or contributors across Australia including libraries, museums, galleries, the media, government and community organisations. [185]

The nature of the content of the material is extensive including full-text online copies of Australian Newspapers and Government Gazettes including “digitised newspapers dating back to 1803” which have “generally been digitised up to 1954, with select newspapers and gazettes contributed up to present day (rights and funding permitting)”; “[f]ull-text online copies of magazines and newsletters from Australia and the Pacific” with articles ranging “in date from 1762 up to present day publications that are contributed through National edeposit (rights permitting)”; “[o]nline images, maps and artefacts from more than 430 Australian organisations depicting special events and everyday life”; and “Biographies and lists of resources about people, families and organisations of relevance to Australia”. [186]

Property searches are available through NSW Land Registry Services (NSW LRS). Historical and current land records can be accessed through approved NSW LRS information brokers or through free searches online. [187] The NSW Spatial Collaboration Portal (NSW SCP) provides a digital mapping service with easy-to-use information-rich maps for every address and lot in NSW. [188]

Professional search information providers are generally able to conduct property “ownership” searches to establish whether a person by a given name is registered as holding property in Australia.

There are mechanisms for searches to obtain street address details based on a folio or title reference number. Such searches are referred to as “Reverse Street Address searches”. A number of portals to undertake Reverse Street Address searches may be used, including the NSW SCP.

Property searches may also be effective but will have limitations in that they will not readily disclose persons who are renting or who otherwise have no ownership of real property.

ASIC searches are also a useful search mechanism for locating relevant persons. However, their usefulness is limited to instances where the person sought to be located has a corporate footprint either as a director, secretary or shareholder or other public officer of a corporate entity. Even where that is the case, there may be limitations because the relevant officer or shareholder has permissibly applied for ASIC to either use an alternative address [189] or to suppress residential address details. [190]

Electoral rolls are lists of people who are registered and eligible to vote at Commonwealth, state, territory and local government elections and referenda. [191]

Relevantly, there are Commissions established for the Commonwealth [192] (AEC) and New South Wales [193] (NSWEC) and Electoral Commissioners appointed. [194] The NSW Commissioner is tasked with: enrolling persons qualified to be electors; maintenance of electoral rolls; and preparation of authorised rolls for elections and other purposes. [195]

For the Commonwealth, there are rolls of electors for each state and territory. [196] A qualified person need only to complete one enrolment form to enrol for federal, state and local government elections as the Commonwealth electoral roll is shared with the relevant state electoral commissions. [197]

In most instances, an electoral roll search will cover a very broad field of adult persons. Thus, leaving aside holders of temporary visas or other lawful or unlawful non-citizens, or persons of unsound mind or those who have been convicted of treason and treachery and have not been pardoned, all of whom are not entitled to have their names placed or retained on any roll to vote, [198] it will capture most Australian citizens who are entitled to enrolment.

At both Commonwealth and State-level there are various pieces of legislation which regulate privacy and access to information including electoral rolls. [199]

The circumstances in which one can inspect or search the New South Wales State electoral roll appear to be more stringent than under the CEA. The NSW Electoral Commissioner may determine the manner and form in which information is to be provided. [200] A request for information involves the NSW Electoral Commissioner identifying the public interest in providing the requested information and making a finding on whether or not the public interest in providing the requested information outweighs the public interest in protecting the privacy of personal information in the particular circumstances. [201] According to the NSWEC website, whilst the roll is available for public inspection for electoral purposes at the NSWEC office, the NSWEC never provides enrolment information to solicitors seeking information in relation to court proceedings, unless requested by subpoena. [202] To inspect the NSWEC electoral roll, one must complete an application form and provide photographic identification. The NSWEC electoral roll is not available online.

The Commonwealth electoral regime distinguishes between access to information by what I will describe as “inspection rights” and “furnishing provisions”.

The “inspection rights” is that a copy of the electoral roll for each state and territory is publicly available for access for inspection at the capital city office [203] of the AEC, at any time during ordinary business hours without fee. [204] The only express limitation on that right is that the right of inspection does not include a right to copy or record by electronic means the roll or part of it. [205]

The “furnishing provisions” address the giving of information. The AEC must give certain information in relation to the rolls and certified lists of voters to particular persons or organisations, such as candidates or members of the House of Representatives or Senate and registered political parties. [206] The AEC may give certain information in relation to the rolls, such as a copy of the roll, upon the request of other persons and organisations. [207] However, the information given under these provisions must not be used for purposes other than permitted purposes. [208] The relevant permitted purposes are limited to purposes in connection with an election or referendum, monitoring the accuracy of information contained in a roll, and any other purpose that is prescribed. [209] Online searches are available but limited. [210]

Certain information is protected from disclosure or is not to be used for commercial purposes. [211] Further, in some instances, the Electoral Commissioner will act upon a request that information either not be entered or be removed where the information might place the personal safety of the person or members of their family at risk. [212]

Significantly, the importance between what I have described as the “inspection rights” and the “furnishing provisions” is that under the inspection rights, an electronic copy of the current national roll is available for public inspection and manual transcription [213] at any AEC capital city office. [214] The difference in the legislative provisions as to the use of information obtained under the “inspection rights” [215] and the “furnishing provisions” [216] may be explicable by the intention to limit the commercial use of the information.

Thus, contrary to the beliefs of some legal practitioners, [217] access to information regarding the names and addresses of persons enrolled is not so prohibitive as to exclude Commonwealth electoral searches from being a useful source of information to locate persons for the purposes of service of Notices of Claim. Specifically, the limitations on an online search do not extend to an in-person search of the Commonwealth electoral roll at any of the AEC capital city offices.

Certain historical electoral information is also available at other locations. The Museums of History NSW hold a number of early manuscript and printed electoral rolls for the period 1842-1890. [218] The State Library of New South Wales holds State electoral rolls from the late 1850s to 1900 (with some gaps) and 1900 to 1929, Commonwealth electoral rolls for the period 1903 to 1928 and joint Commonwealth and State electoral rolls from 1930. [219]

Other searches that may be undertaken include various genealogical searches through websites, including for example ancestry.com.

Sometimes locating a relevant person is, despite search efforts including one or more of those mentioned above, particularly challenging. The reasons for that are numerous. They include the fact that some people’s lives and relationships assume great complication.

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

In addition, some people for various reasons do not wish to be located. [220]

In such circumstances parties often use what is known as “Skip Tracing”. The term “Skip” is derived from the idiom “to skip town”, where someone leaves a location in hurried circumstances with the deliberate intent of avoiding detection. “Skip Tracing” has been described as “the practice of searching for a missing person, especially one who has defaulted on a debt or broken bail conditions” [221] or as “the process of locating a person’s whereabouts”. [222]

There are various sorts of investigators across all industries, professions and walks of life who specialise in skip tracing and locating persons for various purposes. Sometimes the purpose of searching is to benefit the searcher. For example, companies, agencies and entities may seek to locate persons who owe them money or have other unfulfilled obligations. Sometimes the purpose of searching is to benefit the person sought to be located.

Skip tracing is not confined to circumstances in which the relevant person intends to avoid detection but may also be used in cases where simple methods have been unproductive in locating the relevant person and more specialised means are required to be deployed.

Skip tracers are generally provided with a degree of information from the inquirer regarding the person to be located. Often subject to verification of such information, skip tracers are able to locate either the person to be served or potential candidates fitting the description. Skip tracers may have paid access to various databases (not readily accessible by others) enabling them to undertake searches of public or civil records and certain other records.

The process by which the Court is requested to disregard the interests of non-beneficiary non-applicant eligible persons is seldom, even during contested hearings, formalised by the filing of a Court process such as a notice of motion. The consideration by the Court of the s 61 “disregarding” determination varies as between consent applications dealt with in chambers and applications for the purposes of court hearings.

The overwhelming majority of requests to disregard interests arise in the context of consent applications. In those instances almost invariably, the request is made by the parties’ legal practitioners via email to the Probate Registrar or the Succession List Judge’s Associate or alternatively indirectly by including a proposed s 61 order or notation in signed short minutes of order.

In the case of contested hearings, the request to make a s 61 order or notation sometimes appears in the parties’ opening outlines of submissions for the hearing, sometimes in proposed short minutes of order and sometimes it is made orally.

On rare occasions, the Court might require a request for it to disregard the interests of a person to be formalised by notice of motion.

Reflecting on the above, a number of guides emerge as to the practical application of search and notification requirements.

First, there are no prescribed and exclusive means for administrators (or other parties and practitioners) to locate contact details for persons to be served with Notices of Claim. The nature, quantity and quality of search efforts that may be required to enliven and justify a s 61(2)(b) determination will vary in any given case. The types of searches that I have indicated above which may be undertaken and their limitations is by no means exhaustive. Ultimately, the precise means by which relevant persons are located and notified or attempts at those ends are guided by the purposes of the jurisdiction.

Legal purposes and principles operate in an evolving society, and it is no less with search and notification requirements. Oliver Wendell Holmes Jr observed that “The life of the law has not been logic; it has been experience.” [223] Meaningful practise of law is frequently forged by and in response to technological advances [224] and changing practical challenges.

Courts over time are generally astute to consider evidence made available by advances in technology which bear upon the means by which people search for or notify others of significant information. Subject to being satisfied of any necessary safeguards regarding the providence and reliability of such notification means, the Court may permit or ratify a type of service that is considered to be effective.

Secondly, the fact that the SCR, in the first instance, assigns to administrators the task to undertake locating and service of relevant persons with Notices of Claim, whilst explicable for a number of reasons, does not mean that co-operation from other parties is not expected. Location of such persons and service of Notices of Claim is one of the types of legal task which are grounded by important purposes including natural justice, as I have indicated above, which transcend partisan interests. If an administrator meets obstacles in complying with notification tasks, that fact should be brought to the attention of the other parties’ legal practitioners, and reasonable and appropriate co-operation should be undertaken to achieve the task.

Co-operation by the plaintiff (or other non-administrator party) in checking and verifying information provided by an administrator or otherwise providing information facilitates just outcomes by enabling a relevant person to be located and appropriately notified and assisting the Court to avoid the risks that a relevant person’s interests might be disregarded, for example, on an incorrect premise.

Thirdly, administrators, legal representatives and other parties are expected by the Court to use a degree of common sense and co-operative practical thinking in attempting to reasonably locate the relevant person. [225]

Fourthly, practitioners should not necessarily be stymied by initial hurdles. Some degree of persistence is often fruitful. Information gleaned from one search, if not of itself sufficient to enable the searching party to locate a person, may nonetheless be a stepping stone in that direction. For example, certificates obtained might yield information enabling further enquiries [226] and enquiries of occupants of the former address of the person to be located might well provide a sufficient lead to locating the person. [227]

Fifthly, as noted above, sometimes certain prospective recording bodies will not permit searches of data recorded for privacy or confidentiality reasons. Practitioners who conduct searches or use third-party providers to assist them should: (a) be aware of any limitations of the search facilities or mechanisms; and (b) be astute to discerning whether an apparent obstacle to retrieving information through a particular search is unassailable or whether a relevant search outcome is in fact able to be reached through a permissible alternative means.

Sixthly, whilst the form of Notices of Claim is prescribed, practitioners should, in light of the purposes of service, use commonsense to reflect not only on whether it comes to the attention of the recipient but also on whether it is provided in a form which can be properly understood by them. Self-evidently, some persons to be served will be unable to read English. This is particularly so where notices are required to be served in certain countries overseas. Some statutory provisions make express provision for notices to be provided in other languages. [228] Whilst that is not mandated by the applicable provisions relating to Notices of Claim, some practitioners sensibly take the initiative to provide translations of Notices of Claim or seek the Court’s direction regarding that.

Seventhly, personal service by its nature provides the Court with an assurance that the document has come to the attention of the recipient. However, consistent with advances in technology, for many years now, service by email is often adopted by practitioners. Indeed, in approaches by practitioners to the Equity Duty Judge, service by email (said to be justified by the provisions of substituted service under r 10.14 of the UCPR) is now almost universally (or at least very frequently) sought as the means of service in the first instance. Many practitioners serve Notices of Claim by email. However, email service per se does not have the advantage of personal service in readily demonstrating to the Court that the notice has been brought to the attention of the recipient. Therefore, where a form of service other than personal service is adopted, practitioners should be astute to providing the Court some indication that the service has been effective. The reliability of email addresses as being an appropriate means of service may be able to be proved by evidence of such communication showing relative frequent use of an email address by the recipient. Similar considerations apply in relation to service by post. The Court is assisted by the provision of evidence which demonstrates sound reason to find that the postal address specified is a current address for the intended recipient, and that service by post has been appropriately proved. [229]

Practitioners can provide the Court comfort regarding the fact that the Notice of Claim has been brought to the attention of the person to be served by providing an acknowledgement by the intended recipient of receipt of the notice and awareness of its contents.

Sometimes, Notices of Claim are served just prior to the request for the Court to make orders. The Court in such cases needs to consider how much time should be given to the recipient to consider and respond to the notice and will usually require a reasonable time to elapse for the recipient to respond before it considers making final orders. In such cases, the Succession List Judge will generally be able to expedite the making of orders, without a lapse of further time, if the practitioners provide the judge with not only an acknowledgement of receipt of the notice but also an express acknowledgement (if the recipient is so minded) that he or she has no intention of making any family provision claim.

Eighthly, as noted above, a statistically significant number of family provision claims are commenced at or close to the expiry of the limitation period, often with the consequence that Notices of Claim are served after the expiry of the limitation period. Administrators should, as noted above, act to serve Notices of Claim as soon as possible, especially if the plaintiff’s claim has been filed close to or after the expiry of the limitation period for bringing a family provision claim.

Ninthly, sometimes family provision claims are mediated without all relevant persons having been served with Notices of Claim and the parties seek for the Court to make consent orders, often conditional on steps being made to serve relevant persons with Notices of Claim. There are risks associated in mediating without all relevant parties having been notified. Sometimes parties may perceive some pragmatism in that course. However, on a number of occasions any such pragmatism is illusory. Further, in some (mercifully limited) number of cases, the proposed consent orders are seemingly presented as a fait accompli, without any undertaking by the parties to notify persons required to be notified. Parties should not assume that the Court will adopt any less rigorous approach to notification of persons merely because the main protagonists have between themselves reached an agreement to resolve the dispute.

Tenthly, requests to the Court for the exercise of the s 61(2)(b) power should be supported by evidence consistent with the purposes informing that power. In many cases, the evidence initially presented is not sufficiently apposite to justify a disregarding determination under s 61(2)(b). The practice of the Court (whether by the Registrar or the Succession List Judge) in such cases is to requisition by email [230] for the legal practitioner(s) to clarify certain matters or to consider providing additional evidence to address any lacuna in the materials or evidence relied upon.

The “broad themes” I have mentioned above regarding the s 61(2)(b) adjectival terms “unnecessary, unreasonable or impracticable” offer some guidance to practitioners in marshalling evidence and framing of requests for the Court to consider in making final orders determining a family provision application. However, as I have noted each of the three terms have potentially wide-ranging meaning, defying exhaustive definition, and it should be remembered that the Court has a very broad scope for making an assessment as to whether it should determine to disregard the interests of a relevant person who has not been served with a Notice of Claim.

Eleventhly, generally speaking, the Court does not expect searchers to engage in Herculean efforts in an attempt to locate relevant persons. The following practical guidance may be noted.

The overriding purpose guiding the participation of parties in civil proceedings [231] and the specific purposes underpinning the s 61(2)(b) power are the touchstone for the consideration of parties and practitioners in providing the Court with appropriately considered and compelling evidence.

Mere assertions of a relevant searching party, whether it be an administrator or legal practitioner, that they have “not heard of” or “had no contact with” the relevant person for a lengthy period of time is usually insufficient to enable the Court to make appropriate orders in the matter. Rather, some positive step(s) at locating and serving a person is expected.

Where evidence of positive steps as to notification and service is proffered, orders are frequently finalised on the basis of that material. In some cases, even if there are some gaps, the requisition process will often guide the practitioner as to what further evidence is required by the Court. Generally, if further searches are required, the Court will either leave that to the common sense of the practitioner or may on occasion provide an indication of what further searches may be usefully undertaken including relevantly one or more of those I have outlined above.

If the Court seeks further material, very often little further material is required and the Court may well be satisfied with it being provided in a cost-effective form such as by solemn email assurance from the legal practitioners. [232]

Twelfthly, in cases of difficulty the Court may make particular directions as to including in some cases the publishing of notices. Ultimately, if a practitioner is in doubt as to what is required, the practitioner should approach the Court for directions.

The deceased was born in October 1932 and died on 13 July 2023, aged 91. He left a Will dated 13 July 2021, probate of which was granted to the defendant Andres (one of the deceased’s children) on 24 October 2023. Andres is the sole named beneficiary of the estate.

The deceased married Dilsa Evelira Liosatos (Evelira) seemingly in the 1950s and they had three children, being the plaintiff (Dilsa Elena Liosatos), Andres, and George. The plaintiff was born in January 1958 and is now aged 67. The family lived in Panama.

The plaintiff’s affidavit in chief recited some perturbing evidence which, in context, I infer referenced a period of time when the plaintiff was school-aged in the 1960s, as follows: [233]

Evelira died in March 1977. In 1979, the family (comprised of the deceased, the plaintiff, her husband (Manuel), her son, and her two siblings) moved to live in Australia. They stayed at least initially in a house owned or occupied by the deceased’s mother, Angelica.

In about 1988, the deceased travelled back to Panama and married Lilia Esther Amaya (Lilia), the family’s prior housekeeper. The deceased and Lilia have a child, Alberto. In about 1990, the deceased returned to Australia with Lilia. The deceased and Lilia separated at some stage, although it is not clear exactly when on the evidence.

The Plaintiff and her husband had two more children, Miriam and Juan, before Manuel died in June 2008.

The deceased left an estate which, according to the administrator’s affidavit, is now valued at approximately $513,230, comprising a property at Amalfi Crescent in Nowra (valued at $512,000) and the balance being a small amount of cash. There were no liabilities.

The proceedings were commenced by summons on 10 July 2024 (just within time). The Nowra property has been transferred into the defendant’s name as executor. The proceedings have resolved and the parties, as is usual, proposed consent orders to give effect to the resolution.

The plaintiff’s Notice of Eligible Persons (correctly) identified herself, George, Andres, Lilia and Alberto as eligible persons. The Notice stated that each of George’s, Lilia’s and Alberto’s address was “unknown”. The defendant’s administrator affidavit stated that notice of the plaintiff’s application had not been given to any of the (three) eligible persons because he was not aware of the residential addresses or whereabouts of any of them. In particular, the affidavit stated: [234]

Technically, Andres would also be required to be served with a Notice of Claim (both because he is a child of the deceased and the only person entitled to the distributable estate of the deceased). However, he has not been served with a Notice of Claim. That is practically explicable by the fact that whilst the rules require him to be served, [235] he is self-evidently cognisant of the claim and, as the person who is the sole beneficiary of the deceased’s estate, he could not achieve any better outcome by making a claim than the entitlement under the deceased’s will gives him.

At the time of the proposed settlement of the matter, the state of the evidence was that whilst three persons (Lilia, Alberto and George) had been identified as being eligible, none of them had been served.

The defendant’s counsel, Ms Muscat, obviously mindful of the importance of addressing service of Notices of Claim, proposed orders to note the defendant’s undertaking to the plaintiff that he would use his best endeavours to locate the other eligible persons and for each of the parties to provide further evidence to enable the requirement to give notice to be achieved. Orders to that effect were made on 19 September 2024.

Further to those directions, the parties have adduced four affidavits addressing the question of service, being affidavits of Elena sworn 24 October 2024, two affidavits of Neil Kevin Hartley (the defendant’s solicitor) affirmed 31 October 2024 and 6 November 2024, and an affidavit of Gary Ernest Lees (the plaintiff’s solicitor) sworn 4 November 2024.

Sometimes in dealing with family provision settlements, the Court is prepared to act upon statements of family members that a person who would otherwise be required to be served with a Notice of Claim, who is a “family member”, is in fact deceased rather than require a form of death certificate. The Court’s preparedness to do so depends upon the facts of each relevant case.

The evidence served after 19 September 2024 reveals that the assertion in Andre’s administrator affidavit that Lilia had died a number of years ago is plainly incorrect.

This case is a salient reminder that comments, even on apparently solemn occasions such as funerals, to the effect that someone has passed away for a number of years may be unreliable and in fact prove to be incorrect. It also exemplifies the utility of my observation above as to co-operation by parties other than the administrator assisting in verifying details and completion of search and notification requirements.

Relevantly, the plaintiff, notwithstanding the assertion by Andres in his administrator affidavit that he had heard at the deceased’s funeral that Lilia had died, gave in her affidavit sworn 24 October 2024 the following evidence:

I am satisfied by Mr Hartley’s 31 October 2024 affidavit that each of Lilia and Alberto have been formally served with a Notice of Claim and that they have not brought and do not intend to bring claims.

In relation to George, the plaintiff in her affidavit sworn 24 October 2024, states as follows:

Despite the defendant’s undertaking to the plaintiff that he would use his “best endeavours” to locate the other eligible persons in respect of the estate, [236] it is evident from Mr Hartley’s affidavit affirmed 31 October 2024 that (in his own words) he has received “no real co-operation” from Andres (as executor and defendant in the proceedings) regarding compliance with the Court’s orders, in particular with the requirement that he make attempts to serve notice of proceedings on the eligible persons. [237]

The reasons for Andres’ lack of co-operation have not been detailed. Other than observing as I have above that, apart from any agreement between the parties regarding co-operation, parties have a duty to assist the Court giving effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings, [238] I make no specific findings regarding the reasons for Andres’ uncooperative conduct.

Mr Lees in his affidavit sworn 4 November 2024 stated as follows:

In his affidavit affirmed 6 November 2024, Mr Hartley relevantly states as follows:

Whilst the respective solicitors were correct regarding a search through the NSWEC, cognisant of the CEA provisions which permit an in-person search of the Commonwealth Electoral rolls at the AEC, I requested the parties to arrange for and undertake an in person search. That was done and provided through a searcher Jacynta Falcone on behalf of a legal technology entity InfoTrack which revealed a “Nil result”.

In response to my requisition seeking clarification regarding aspects of the plaintiff’s evidence, Mr Lees advised, by email to my Associate, that the plaintiff has never been aware of where George was living in Wagga Wagga and did not ever have a telephone number for him directly but only a telephone number for his neighbour. Further, Mr Lees advised that the telephone call the plaintiff received on 6 August 2024 was not from George’s neighbour who had a “female-sounding voice” but from a person who “sounded male”.

The plaintiff’s counsel Mr Bradford provided submissions regarding the making of an order pursuant to s 61 of the Succession Act and the defendant’s solicitor was content to rely upon those submissions.

Mr Bradford submitted that:

In the above circumstances Mr Bradford submitted that service on George of a Notice of Claim in the prescribed form is unnecessary or impracticable and can safely be dispensed with and his interests disregarded. [244]

Two issues regarding notification arise.

The first issue relates to the evidence that I have recited above from the plaintiff about her father’s trips with her in Panama in the 1960’s and his fathering with barely teenage girls of ex-nuptial children. The evidence, if true, is alarming. This raises a difficulty that arises not infrequently in family provision cases in which there are serious allegations in the sworn evidence which forms part of the evidentiary material provided to the Court on which the Court is requested to exercise its jurisdiction pursuant to the Succession Act to make an order for provision (s 59) or to disregard interests (s 61).

The nature and strength of the evidence required to establish a fact depends on the nature of that fact and on the context in which it is sought to prove the fact. [245] In particular, the gravity of the matters alleged are one of the matters that the Court may take into account in deciding whether it is satisfied that the matter has been proved to the appropriate standard. [246] The question of what factual findings the Court should make in family provision proceedings depends upon the precise relevance of the asserted fact to the proceedings. Strictly speaking, evidence that indicates that the deceased fathered ex-nuptial children is relevant to the finalisation of family provision proceedings and the exercise of the power under s 61 of the Succession Act, as children of the deceased are eligible persons [247] who are required to be served with a Notice of Claim. The precise circumstances in which such children were fathered, particularly if it involves alleged sexual misconduct, might in some cases bear relevance. However, even then, the appropriateness of making findings is not straightforward. [248]

The assertion that the deceased has fathered a number of ex-nuptial children in the circumstances recited is a grave matter. I have no reason to think that the plaintiff’s evidence is fictitious and other than credible. But the evidence is untested. There is no ideal and cost-effective mechanism in these proceedings, involving an estate which though not very small, is by no means large, to adequately address the issue. I admit of the possibility that the deceased might have had a number of ex-nuptial children but I consider that it is not appropriate to make any specific finding to that effect. Even assuming the plaintiff’s evidence is true, I consider, as noted above, the identification and location of such ex-nuptial children (if still alive) would now be well-nigh impossible. I propose to proceed on the basis that that it is impracticable and unnecessary for the parties to now attempt to seek to identify and locate any such ex-nuptial children.

The second notification issue relates to George. The conversation that the plaintiff had with George, prior to the deceased’s funeral, went some way to addressing the purposes of Notices of Claim in that it alerted him to the fact that the deceased had passed away and that, as his son, he may have some entitlement to receive a monetary outcome by a claim on the deceased’s estate.

Further I am satisfied that George’s statement that he did not want anything in response to the plaintiff’s statement that “you are his son. You are entitled to some money” and his arrangement for a person to contact the plaintiff to alert her that he has moved but did not wish to have his address details disclosed, at least on one view, evinces a conscious intention by George to have no further involvement in the matter and preclude contact.

The submissions of Mr Bradford to my mind fairly summarise the evidence. As Mr Bradford acknowledged, [249] it is not necessary for me to make any particular finding regarding whether George had been estranged from the deceased for any considerable time prior to the deceased’s death.

Largely, I accept Mr Bradford’s submissions. I find that, within the meaning of s 61(2)(b), the evidence sufficiently justifies a finding that service of a Notice of Claim on George is “impracticable” in the sense that there has been some (albeit unsuccessful) attempt to locate him with further attempts being inherently likely to be unproductive, and in any event “unnecessary” in light of the evidence. The evidence shows that at an early stage, albeit not in the prescribed form, George was substantively alerted to his potential eligibility to make a claim but rebuffed that approach and that even if he were eventually to be located and served with a Notice of Claim, he has evinced an intention that he does not want anything from the deceased’s estate. On that basis I propose to disregard George’s interests notwithstanding that he has not been formally served with a Notice of Claim.

In the above circumstances, I have made certain family provision orders, including the following notations, namely that the Court has pursuant to s 61(2)(b) Succession Act 2006 disregarded the interests of: (a) the deceased’s ex-nuptial children (if there be any) on the basis that, in all the circumstances of this case, service of a Notice of Claim on them is impracticable and unnecessary; and (b) George Liosatos on the basis that, in all the circumstances of this case, service of a Notice of Claim on him is unnecessary and or impracticable.