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consideration may be whether the plaintiff is able to repay the lump sum in the event the interim provision Order was revoked, although there may be cases where the Court would make an interim provision Order for an impecunious applicant;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.