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.