10 July 2024

Updating financial circumstances in Family Provision Claims

Written by Hilary Monteith

“Don’t let the dough rest for too long” – Lessons learned from Baker v Baker – Updating financial circumstances for a family provision claim

Updating financial circumstances in Family Provision Claims

You have made a claim for family provision out of a deceased person’s estate. At the time of filing the Summons, the Court requires an Affidavit to be filed setting out various matters in accordance with a prescribed form of affidavit pursuant to Practice Note SC Eq 7 (the Practice Note). Importantly, as plaintiff, that affidavit will go into detail in relation to your financial resources (including earning capacity), including the financial circumstances of any person you cohabit with.

However, a hearing in the matter may not be listed for several months, if not over a year, after the proceedings being filed.

Do you need to update your circumstances or is the primary affidavit enough?

A recent decision of Hammerschlag CJ in Eq Baker v Baker [2024] NSWSC 559 makes clear that evidence as to financial resources must be updated prior to a hearing, reliance should not be placed on the primary affidavit as it will not be accurate at a final hearing.

Section 59(1)(c) of the Succession Act 2006 (NSW) requires the Court to be satisfied at the time the application is being considered that adequate provision has not been made by the Will. If it is satisfied that adequate provision has not been made, the Court may make such order for provision it thinks ought to be made having regard to the facts known to the Court at the time the order is made (s 59(2)).

The Succession and Probate Lists Practice Note SC Eq 7 (recently re-issued in June 2024) at Paragraph 35 now states:

If the matter does not settle, there will be a timetable to prepare the matter for final hearing, which may include provision for the filing and service of a costs affidavit and an updating affidavit by any party or beneficiary. Irrespective of whether provision is made for an updating affidavit, practitioners are reminded of the obligation on an applicant to place the relevant facts before the Court.

In Baker, heard before the amendment to the Practice Note, no order to file updating evidence was made by the Court, and no updating evidence was filed. During cross-examination evidence came to light as to a change in the financial resources of the Plaintiffs in the matter. The Court stated:

[48] [Denise’s] claim falls to be dismissed by reason of her non-disclosure alone. Whether the additional material, had it been disclosed, would have helped or hindered her application is unknown to the Court…

[53] Given the fundamental nature of the obligation to disclose and the impediment to success of a claim which such a failure may bring about, it is elementary that a legal practitioner appearing for an applicant ascertains from the applicant, at or about the time of the hearing, whether there has been any change in their financial circumstances necessitating disclosure. Plainly, that did not happen here.

Isn’t the obligation on my solicitor?

Yes, Baker makes clear that your legal representative should make the necessary enquiries to ascertain any change in your circumstances. Best practice might include inspecting documents produced on subpoena or by notice to produce to check instructions regarding a Plaintiff’s financial and material circumstances.

But what if I think there has been no change?

Well, you may think there has been no significant change, in that you may not have sold a house or won the lottery, but, if you have even just one bank account there will always be some change, however small, that must be updated so that the Court has your current financial circumstances at the date of the hearing.

As in Baker the change could be to living arrangements, to receiving a Centrelink payment, or to employment. A full update of your circumstances should be provided prior to the hearing. Whilst the primary affidavit is lengthy, an updating affidavit can be short as it is specifically directed to updating the Court as to any change (or indeed simply to confirm there has been no change).

While not specifically adverted to in Baker updating evidence should likely extend to any person with whom a Plaintiff is cohabiting and to beneficiaries who have raised their financial resources as competing claimants on the bounty of the deceased.

31 January 2024

Death on your own terms: Voluntary Assisted Dying in New South Wales

In November 2023, the Voluntary Assisted Dying Act 2022 (the “Act”) came into effect allowing some people or “eligible persons” under the Act to access voluntary assisted dying.

What is voluntary assisted dying?

Voluntary assisted dying allows eligible persons to request medical assistance to end their life voluntarily and legally. Voluntary assisted dying is not a form of suicide.

Voluntary assisted dying is defined as “the administration of a voluntary assisted dying substance and includes steps reasonably related to the administration” (Schedule 1 of the Act).

The administration of a lethal substance is one of the last steps in the voluntary assisted dying process. To get to this stage, there is a strict eligibility criteria which must be met and several steps which must first be taken.

So, who is an eligible person?

To access voluntary assisted dying, a person must meet the eligibility criteria which is set out below. A person must:

  1. Be an adult (18 years old) who:
    1. Is an Australian citizen; or
    2. Is a permanent resident of Australia; or,
    3. has been a resident in Australia for at least 3 continuous years.
  2. Be a resident of NSW for at least 12 months.
  3. Have at least one disease, illness, or medical condition that:
    1. Is advanced, progressive and will cause death, and
    2. Will, on the balance of probabilities, cause death within a period of 6 months (12 months for a condition that is neurodegenerative, for example, motor neurone disease); and
    3. Is causing suffering that cannot be relieved in a way that the person considers tolerable.
  4. Have decision-making capacity. This is defined under section 6 of the Act which sets out a number of factors, for example, that the person can understand and remember the information or advice given to them about voluntary assisted dying.
  5. Be acting voluntarily.
  6. Not be acting under any pressure or duress.
  7. Have an enduring request for voluntary assisted dying.

If a person only has a disability, dementia, or a mental health impairment, they will not be eligible for voluntary assisted dying.

If someone is an eligible person, what is the process involved with voluntary assisted dying?

There are 11 steps in the voluntary assisted dying process. Below is a summary of what will occur at each step.

  1. The First Request: The patient makes a clear and unambiguous request for voluntary assisted dying to a doctor. No one can ask to undergo voluntary assisted dying on behalf of a patient. Only the patient can ask for medical assistance to die.
  2. The First Assessment: If the doctor accepts the first request, they will coordinate the voluntary assisted dying process and assess the patient’s eligibility for voluntary assisted dying.
  3. Consulting Assessment: After the first assessment, another doctor will provide a second opinion on whether the patient is eligible for voluntary assisted dying.
  4. Written Declaration: If the patient is determined by both doctors to be eligible for voluntary assisted dying, they will write a declaration.
  5. Final Request: This final request makes it clear whether the patient would still like to access voluntary assisted dying.
  6. Final Review: A final review is then undertaken by the first doctor.
  7. Administration decision: At this stage, the patient decides whether they would like to take the voluntary assisted dying substance by self-administration (taking the substance themselves) or by practitioner administration (a nurse or doctor will administer the substance to them).
  8. Medication Authorisation: The patient’s doctor will apply for the medication and the Voluntary Assisted Dying Board will need to grant approval.
  9. Medication prescription: The voluntary assisted dying medication is prescribed.
  10. Take medication: The medication is taken or given to the patient, depending on their choice.
  11. Notification of death: After the patient’s death, the relevant forms are completed.

The voluntary assisted dying process can be stopped at any time. Further, if at any stage throughout the process, the person permanently loses the capacity to make decisions in relation to voluntary assisted dying, i.e. they no longer have decision-making capacity, they are no longer eligible for voluntary assisted dying.

You can read more information about this process here: https://www.health.nsw.gov.au/voluntary-assisted-dying/Pages/process.aspx

If I am not happy with a decision, can I review it?

The Supreme Court of NSW can review decisions made at various stages of the process.

Can I make a direction for voluntary assisted dying in my appointment of enduring guardian?

No. Voluntary assisted dying cannot be prescribed through an enduring guardian or a power of attorney. The request for voluntary assisted dying can only be made by the patient, no one can request that it take place on their behalf.

Contact us

The Act has only recently come into force, and it is in the early stages of implementation.

If voluntary assisted dying is something you are considering, it is important to obtain current medical and legal advice about this issue. Uther Webster and Evans has extensive expertise in succession and estate matters and can provide you with advice and guidance. Please contact our offices on (02) 9290 1177.

Disclaimer: The contents of this article is for informational purposes only and does not constitute legal advice, nor is the contents of this article intended to be a substitute for legal advice or to be relied upon as such.

18 December 2023

Urgent Need for Provision out of Deceased Estate

Written by Justine Taylor

Making an Application under s62 of the Succession Act 2006 (NSW)

In some instances, an urgent application may need to be brought seeking an advance or interim provision out of a deceased estate, where a plaintiff has brought proceedings and has urgent needs to be met.

Correspondence will usually be exchanged between the solicitors acting for the estate and the solicitors for the plaintiff in the first instance. However, if an agreement is not able to be reached with respect to any interim provision, an application can be made to the Court by the plaintiff under s62 of the Act, seeking an Order for interim provision to be made.

Such an application was recently considered in the decision of Byrd v Margiotta [2023] NSWSC 1556, by Justice Meek who reiterated the relevant principles that the Court will take into account, including:

  1. The onus will be on the plaintiff to demonstrate that an interim Order shall be made;
  2. Generally, eligibility should not be in dispute for the making of an interim application;
  3. The plaintiff must be able to demonstrate that their case, at final hearing, is more than arguable that provision would be made;
  4. It is necessary that on the balance of probabilities, after fully considering the untested evidence, that no less provision than what is proposed in the interim Order would be made in favour of the plaintiff at the final hearing;
  5. The making of an interim Order is entirely discretionary, even if the other pre-conditions are satisfied. Such an Order is permissive rather than compulsive;
  6. The discretion is fairly wide, but it is not unlimited. Such discretion will be exercised judicially (fairly and reasonably);
  7. The Court will not be required to determine the precise Order for provision that the Plaintiff may receive at final hearing, and need only form the opinion that the plaintiff will receive no less than the provision by way of final Order;
  8. A relevant consideration may be whether the plaintiff is able to repay the lump sum in the event the interim provision Order was revoked, although there may be cases where the Court would make an interim provision Order for an impecunious applicant;
  9. An interim Order takes effect as a Codicil to the Will under s72 of the Act (in other words, it operates to amend the Will).

If pertinent information is required to assess the prospects or merit of an estate claim, it is important to obtain advice and assistance from a solicitor and UWE have specialists in wills & estates that can assist.

17 April 2020

Who Can You Trust?

Written by Lucas McCallum

Trust is the true yardstick for every relationship.  How does your relationship measure up? 

In this Article, we discuss the recent decision by the Family Court of Australia in Khalif & Khalif and Anor [2020] FamCA 39

Catchwords: Constructive Trust, Common Intention Constructive Trust, Property Settlement, Family Law Act 1975 (Cth)

Everyone takes a gamble when they choose to arrange their finances with another person, business or entity.  The recent case of Khalif & Khalif and Anor highlights the complex legal issues that can arise when spouses choose to arrange their finances with members of their families and later separate.

The spouses in Khalif, were married and began living together as husband and wife in 2003.  They had their first child in 2006 and their second child in 2008.  In 2009, a property was purchased and became the parties’ home.

The crucial issue in this case arose because the home was purchased by and in the name of the husband’s brother, and not the parties themselves. The wife told the Court that when she queried the husband about those arrangements, he said to her at the time:

“Because we can’t get the loan in our name, this is [my brother]’s way of paying me back for all of my help I gave him prior to him purchasing [one of his businesses]. During that time I was driving taxis and giving him the money I earnt.”

[at 109]

The husband’s brother purchased the property for approximately 1.45million, fully funded by a loan obtained by the husband’s brother.

From around the time of the purchase in 2009 the parties began to live in the property and it became their home until their separation in 2016, during which time, they had their third child (in 2011).  The parties paid council and water rates and utilities in respect of the property and together they renovated and improved their home.

Over the course of their marriage, the parties, through various corporate entities controlled by the husband and his brother, paid periodic payments totaling approximately $800,000, during their occupation of their home.  The wife, based on the things said to her and done by the husband, understood those payments created a real interest in their home, much more than a right of occupation, which a mere tenant would enjoy.

Following the parties’ decision to separate in 2016, the husband vacated the home, leaving the wife and the children. Shortly thereafter and perhaps to her great shock, the wife received from her brother-in-law a Notice to Vacate, on the basis she was a tenant of the property.

A constellation of issues arose for the wife, including:

  • Was she required to leave the home?
  • Did she or her husband have any right to or interest in the home?
  • Consequent on the answer to the issue in the preceding point, what would she be entitled to as a property settlement with her husband?

Dealing with these questions in turn, firstly, there were initially proceedings under NSW tenancy laws in the New South Wales Civil and Administrative Tribunal.  In those proceedings, the husband’s brother sought to evict the wife from her home.  The husband’s brother was not successful in those proceedings, following which, the wife obtained an order from the family law courts for sole occupation of the home and orders preventing its sale pending a property settlement between the husband and wife.

The next issue became the central issue in Khalif: what, if any, was the interest of the husband or the wife in the home?

The husband’s answer was that his brother was the legal owner of the property and that neither he nor his wife had any interest in it.  The wife’s answer was that the husband’s brother held a part of his interest in the property on trust for the husband.

For the reasons above, it was necessary to involve the husband’s brother in the proceedings, and so he became a party to the issue between husband and wife.

Ultimately, the Court looked to the common intention of the parties during their marriage and their respective evidence and contentions about how those intentions were formed and implemented.

The Court was critical of the husband and his brother in relation to the evidence they gave in respect of those matters and generally accepted the evidence of the wife where the husband and his brother’s evidence were in contest with the wife’s.

The Court determined that the husband’s brother held on trust for the husband an interest in the property equivalent to the sums paid by the husband to his brother during the course of the parties’ marriage and occupation of their home – $892,500.  The Court expressed this sum as a percentage of the purchase price paid for the home, and the husband was found to have a 61.25% interest in the home.

In family law proceedings for property settlement between separated spouses, the first step is identify (and where necessary or possible, value) the assets, liabilities and financial resources of each party.  This becomes legally complex when third parties, like the husband’s brother, are involved, and results in cost and delay for the parties.

For the wife, this involved the determination of these preliminary issues before the Court could decide the property settlement between the husband and wife – which is the third and final question, yet to be reported by the Courts.

For reasons which are made abundantly clear in this case, the most sensible course is to obtain specialist family law advice before arranging your financial affairs with your spouse.

27 March 2020

Keeping your distance: family law at three paces and how to beat the virus

Preparing for and weathering out the next 12 months is likely to impact the way in which legal services are delivered for the foreseeable future – but this does not mean you have to put off your plans.

Social distancing is a risk mitigation strategy.  Fortunately, Uther Webster & Evans uses technology that allows our Lawyers and Partners to work remotely as and when required – allowing us to continue to assist our private clients throughout the global response to COVID-19 and do our part to reduce transmission of the virus.

Each of the Family Court of Australia and Federal Circuit Court of Australia have taken steps to ensure their continued operation – which includes social distancing procedures.  Court events are largely being held by telephone and are being closely examined by Judges and Registrars to explore options for settlement without the need for hearings.  Parties in proceedings will be advised of the protocols to be followed in Court, and whether hearings will be conducted by phone or whether a personal appearance is required.

We have implemented video conferencing facilities, and we are able to conduct conferences, including settlement conferences and mediations, and participate in Court events and hearings remotely.

If you need help arranging your finances or the care of your children with your former spouse, contact us today: we are proudly business as usual.

The Family Law Section has prepared a Top Ten Guide for separated parents, which you may find helpful during this time.

The Top Ten Guide includes links to the Centers for Disease Control and Prevention which offers strategies you can adopt in your daily lives to limit the impact of COVID-19 on you and your families, and to the Department of Health alert service covering everything you need to know about the novel coronavirus.