Applications for provision or further provision are commenced by summons in the Supreme Court. The orders sought are standard and encompass provision or further provision from the actual and/or from the notional estate of the named deceased setting out their date of death.

The summons is supported by the plaintiff’s affidavit which consists of the prescribed form annexed to Supreme Court of NSW Practice Note SC Eq 7 — Family Provision. The form is self explanatory and the guidance notes provide further explanation to assist in the completion of the affidavit.

The plaintiff must be truthful in all of the claims including their assessment of their own assets, liabilities, earning capacity and health status, as well as their needs and the cost of provision of those needs. As this is a discretionary jurisdiction, courts have sometimes declined to make provision for an applicant because of untruthfulness where they might otherwise have made an order for provision.

As part of the commencement process, the applicant is also required to file a form of draft consent orders for the first return date. This is a procedural document, which sets out a timeline for the steps to be undertaken to prepare the matter for hearing and includes dates for the defendant’s affidavits, return dates for subpoenae and, if required, the filing of expert reports.

If there is an urgent need for provision such that there is real hardship a notice of motion can be filed at the same time as the summons seeking urgent provision or expedition of the hearing of the case supported by an affidavit in support deposing to the aspects of the case which make it necessary for urgent provision or for expedition of the hearing.

The deceased’s assets that comprise the estate are available for an order for provision or further provision.

An application for provision or further provision is commenced by originating motion in either the Supreme Court or County Court of Victoria. The application should be served upon the executors or administrators of the estate.

After filing the origination motion and receiving service of the defendant’s notice of appearance, the applicant must issue a summons (for directions) which will give a return date for a directions hearing.

At the directions hearing the judge will give directions as to the future conduct of the proceeding, such as the timetable for serving beneficiaries with notice of the claim, the filing and exchange of affidavit material and mediation.

Family provision applications are commenced by filing an Originating application in either the Supreme or District Court.

The Originating application is supported by the applicant's affidavit in support. The Affidavit and the Originating application are filed together.

The plaintiff must be truthful in all of the claims including their assessment of their own assets, liabilities, earning capacity and health status as well as their needs and the cost of provision of those needs. As this is a discretionary jurisdiction, courts have sometimes declined to make provision for an applicant because of untruthfulness where they might otherwise have made an order for provision.

Pursuant to the Practice Direction of the Supreme Court and District Court, when the applicant serves the Originating application and Affidavit on the executor, he/she also needs to serve a draft Directions order in accordance with the Practice Direction. This sets out a timeline for the steps to be undertaken to prepare the matter for hearing and includes dates for all parties’ affidavits and mediation.

Family provision applications are commenced by filing an originating summons in the Supreme Court. The application should be served upon the executors or administrators of the estate and those beneficiaries against who further provision is sought. Prior to recent changes all beneficiaries were joined, adding many defendants to family provision applications. Some of the defendants only received a small legacy or an individual chattel. If no claim is made by the applicant against the legacy or bequest made to a particular defendant, then that defendant should not be added to the originating summons. The limiting of the defendants to those defendants against whom a claim for further provision is made carries over to the first call-over or status conference. At this conference, only those beneficiaries against whom further provision is sought by the applicant are joined to the originating summons. At the case management conference or call-over or status conference the Registrar will give directions as to the future conduct of proceedings. The beneficiaries against whom further provision is claimed will be added as defendants to the action. If any party is under a disability, for instance a minor or person under a guardianship order or an administration order, will be joined to the action but represented by their next friend or guardian ad litem.

If the Registrar also gives directions for an early mediation, the executor will be directed to file an affidavit stating the up to date financial circumstances of the estate two weeks before the mediation. The defendants will not be required to file any responsive affidavits prior to the mediation. Experience has shown that responsive affidavits by the defendants are unhelpful to reaching a resolution at an early mediation. The responsive affidavits entrench parties in particular positions. The responsive affidavits regurgitate and raise any issues that may make resolution at any mediation increasingly difficult. The focus of the mediation is on the applicant’s claim, not on the response of the defendants to every issue raised by the applicant or that could be raised by the respondents against the applicant.

Family provision applications are commenced by issuing a summons and either particulars of claim or originating affidavit. Rule 312(2) of the Supreme Court Civil Rules 2006 (SA) also requires the claimant to file with the originating process an affidavit setting out the names and addresses of all persons who might be entitled to make a claim under the Act, and the names and addresses of each beneficiary under the will. It is also common practice to indicate in that affidavit whether any of the potential claimants or beneficiaries are not sui juris.

Once the summons has been issued and either a defence or responding affidavit filed, the court will send a notice of status conference which is the first interlocutory attendance.

Only the actual estate is amenable to orders under the Testator’s Family Maintenance Act 1912 (Tas). There is no concept of notional estate.

Application for further provision are commenced by originating application in the Supreme Court to a judge in chambers: s 4(1) of the Act and r 90(1)(zf) Supreme Court Rules 2000 (Tas). Evidence is to be given by affidavit: r 458(c) Supreme Court Rules 2000 (Tas).

The application must be made not later than three months after the date of the grant of probate or letters of administration: s 11(1) of the Act. The court has power to extend time within which an application may be made: s 11(2) of the Act. Once distribution of the estate or partial distribution has been made the court cannot disturb the distribution: s 11(4) of the Act.

The applicant will be given a return date for a directions hearing. The application should be served upon the executors or administrators of the estate prior to the return date.

At the directions hearing the judge will give directions as to the time for filing of the applicant’s affidavits in support of the application and may order the executors to file an affidavit with particulars of the estate including the names and addresses of beneficiaries or those persons interested under and intestacy, the assets and liabilities of the estate and details of those person entitled to make application: s 6(b) of the Act.

Applications for provision or further provision are commenced 12 months after the date on which administration in respect of the estate of the deceased person has been granted: s 9 of the Family Provision Act 1970 (NT). If the distribution is made not earlier than 12 months after the deceased person’s death and, at the time the distribution is made, the administrator has not received written notice that an application for provision has been commenced and has not been served with a copy of the application, an administrator of an estate will not be liable for the proper distribution of property.

Applications for provision or further provision are commenced by an originating claim and supporting Statement of claim in the Supreme Court. The orders sought are standard and encompass provision or further provision from the actual estate of the named deceased setting out their date of death.

The rules do not prohibit the commencement of a family provision claim by originating application. The difficulty is that such an application is usually not ready to be heard without directions and the filing of evidence.

The originating claim and supporting statement of claim can be supported by the plaintiff's affidavit in support although this is often supplied once directions for the filing of evidence are made. When filing affidavit material the plaintiff must be truthful in all of the claims including their assessment of their own assets, liabilities, earning capacity and health status as well as their needs and the cost of provision of those needs. As this is a discretionary jurisdiction courts have sometimes declined to make provision for an applicant because of untruthfulness where they might otherwise have made an order for provision.

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