PART 4 MISCELLANEOUS

Updates and background for this project (Digest)

4.1 Clause 42 is based on Wills Probate and Administration Act 1898 (NSW) s 41A. The National Committee favoured the inclusion of a provision to this effect to enable a person to obtain a grant of probate for family provision purposes. The National Committee observed that:

There have been difficulties in jurisdictions requiring a grant of probate for family provision purposes where a person entitled to a grant of probate has refused to take it. If there is no grant of probate there is no one to sue.¹

 

43 Substitution of property affected by orders or proposed orders (1) If the Court has made, or proposes to make, a family provision order affecting certain property in the estate of a deceased person, the Court may, on application by a person who offers other property in substitution (the replacement property): (a) vary the family provision order by substituting the replacement property for the property affected by the order, or (b) make a family provision order in respect of the replacement property instead of the property proposed to be affected by such an order, as appropriate. (2) If the Court has made, or proposes to make, a notional estate order designating certain property as notional estate, the Court may, on application by a person who offers other property in substitution (the replacement property): (a) vary the notional estate order by substituting the replacement property for the property designated as notional estate by the order, or (b) make a notional estate order designating the replacement property as notional estate instead of the property proposed to be designated as notional estate by such an order, as appropriate. (3) The Court may vary or make an order under this section only if it is satisfied that the replacement property can properly be substituted for the property affected or proposed to be affected by the family provision order, or the property designated or proposed to be designated as notional estate, as appropriate. (4) An order varied or made under this section is taken to be an order in respect of property of the estate or notional estate of the deceased person for the purposes of this Act (except section 23 (Effect of family provision order)).

 

4.3 Clause 43 is based on Family Provision Act 1982 (NSW) s 30. The National Committee, in recommending a provision to this effect, noted the view that such a provision in some cases could facilitate “a proper result so as not to affect some parties’ actual position or expectation”.³ It was also noted that it could encourage settlement of family provision disputes in appropriate cases.⁴

4.4 The reference to “proposed” family provision and notional estate orders in cl 43(1) and cl 43(2) allows for the substituted property to be offered prior to the making of the order as well as after an order has been made. This will avoid the need for additional proceedings once an order has been made.⁵

 

44 Protection of administrator who distributes after giving notice (1) The administrator of the estate of a deceased person may distribute the property in the estate if: (a) the property is distributed not earlier than 6 months after the deceased person’s death, and (b) the administrator has given notice in the form prescribed in Schedule 1 that the administrator intends to distribute the property in the estate after the expiration of a specified time, and (c) the time specified in the notice is not less than 30 days after the notice is given, and (d) the time specified in the notice has expired, and (e) at the time of distribution, the administrator does not have notice of any application or intended application for a family provision order affecting the estate of the deceased person. (2) An administrator who distributes property in the estate of a deceased person is not liable in respect of that distribution to any person of whose application for a family provision order affecting the estate of the deceased person the administrator did not have notice at the time of the distribution if: (a) the distribution was made in accordance with this section, and (b) the distribution was properly made by the administrator. (3) The notice given by the administrator must be given in accordance with the regulations. (4) For the purposes of this section, notice to the administrator of an application or intention to make any application under this Act must be in writing signed by the applicant or the applicant’s [insert appropriate reference for jurisdiction to a legal practitioner].

 

4.5 Clause 44(1), (2) and (3) are based on Family Provision Act 1982 (NSW) s 35(1) and relevant rules,⁶ with some matters imported from Succession Act 1981 (Qld) s 44(3)(a). The provisions imported from Succession Act 1981 (Qld) s 44(3)(a) are:

• Clause 44(1)(a) which adopts the Queensland position that the period of six months runs from the date of death rather than the date of the grant of probate or letters of administration, as is the case in other jurisdictions.⁷ The National Committee noted that the purpose of such a provision is “to impel potential applicants to commence proceedings, or to advise the personal representative of an intention to commence proceedings, within six months of the death”.⁸ It should be noted that, notwithstanding the six month period before distribution can be made in this clause, applicants will still have 12 months from the date of death to make a family provision application within time.⁹

• Clause 44(1)(e) on the basis that requiring that the administrator not have notice of any application or intended application will give added protection to potential applicants.¹⁰

4.7 A form of notice of intended distribution is set out in Schedule 1 of this Bill.

4.8 Clause 44(4) is based on Succession Act 1981 (Qld) s 44(4).

 

45 Protection of administrator in other circumstances (1) An administrator of the estate of a deceased person who distributes property in the estate for the purpose of providing those things immediately necessary for the maintenance, education or advancement in life of a person who was wholly or substantially dependent on the deceased person immediately before his or her death is not liable for any such distribution that is properly made. (2) Subsection (1) applies whether or not the administrator had notice at the time of the distribution of any application or intended application for a family provision order affecting property in the estate. (3) No person who may have made or may be entitled to make an application under this Act is entitled to bring an action against the administrator of the estate of a deceased person because the administrator has distributed any part of the estate if the distribution was properly made by the administrator after the person (being of full legal capacity) has notified the administrator in writing that the person either: (a) consents to the distribution, or (b) does not intend to make any application under this Act that would affect the proposed distribution. (4) An administrator of the estate of a deceased person who receives notice of an intended application under this Act is not liable in respect of a distribution of any part of the estate if the distribution was properly made by the administrator not earlier than 12 months after the deceased person’s death. (5) Subsection (4) does not apply if the administrator receives written notice that the application has been commenced in the Court or is served with a copy of the application before making the distribution. (6) For the purposes of this section, notice to the administrator of an application or\intention to make any application under this Act must be in writing signed by the applicant or the applicant’s [insert appropriate reference for jurisdiction to a legal practitioner].

 

4.9 Clause 45 is chiefly based on provisions in Succession Act 1981 (Qld) s 44.

Distributions to deceased’s dependants

4.10 Clause 45(1) and (2) are based on Succession Act 1981 (Qld) s 44(1) which protects personal representatives who make an early distribution for the “maintenance or support” of dependants of the deceased. Similar provisions, using different terminology to describe “maintenance or support”, may be found in legislation in other Australian jurisdictions.¹² The National Committee decided to adopt the expression “maintenance, education or advancement in life” for the sake of consistency with cl 10, which deals with the Court’s power to order provision.¹³

4.11 The Queensland provisions currently refer to the maintenance of “any child of the deceased person totally or partially dependent on the deceased person immediately before the death of the deceased person”. Clause 45(1) refers instead to “a person who was wholly or substantially dependent on the deceased person immediately before his or her death” in order to accommodate the new approach to eligibility set out in cl 6 and cl 7.¹⁴

4.12 The National Committee also decided that this provision should make it clear that “the protection from liability afforded to a personal representative is to apply only to the extent that the distribution made is for the purpose of providing those things immediately necessary for the specified purposes”.¹⁵ The phrase “for the purpose of providing those things immediately necessary for…” has, therefore, been adopted from Inheritance (Family and Dependants Provision) Act 1972 (WA) s 11.

4.13 This provision can be compared with cl 53(1) of the National Committee’s Wills Bill 1997¹⁶ which allows a personal representative to make maintenance distributions to a person who is a beneficiary and who is wholly or substantially dependent on the testator, but whose entitlement under the will does not become absolute until 30 days after the testator’s death. Clause 45 of the Family Provision Bill is broader, in that it applies to persons who are wholly or substantially dependent, but who are not necessarily named in the will, including those who may be entitled on intestacy or partial intestacy.

Distributions to which an eligible person consents

4.14 Clause 45(3) is based on Succession Act 1981 (Qld) s 44(2) which provides that the personal representative will not be liable to any person who may have been entitled to apply for provision but who has advised the personal representative that he or she consents to the distribution or does not intend to make any application. Similar provisions have been enacted in Victoria and Western Australia.¹⁷

4.15 The National Committee noted that this provision facilitates the early distribution of estates¹⁸ and concluded that this was a desirable outcome, so long as the interests of persons who might be entitled to apply were not prejudiced by the early distribution.¹⁹

Distributions made after notice is given that a person intends to apply for family provision

4.16 Clause 45(4) and (5) are based on Succession Act 1981 (Qld) s 44(3) which protects a personal representative from liability to a person who gives notice of an intention to make an application, but who fails to do so within the prescribed time and then makes an application out of time.

4.17 The National Committee, in recommending the inclusion of such a provision, noted that the mere giving of notice of intention ought not to delay the administration of an estate beyond the 12 month period prescribed in the Model Bill:

the personal representative should be able to distribute the estate in the knowledge that he or she will not be liable in respect of that distribution if the person subsequently makes an application out of time.²⁰

 

46 Release of rights under Act (1) A release by a person of the person’s rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval has not been revoked by the Court. (2) Proceedings for the approval by the Court of a release of a person’s rights to apply for a family provision order may be commenced before or after the death of the person whose estate may be the subject of the order. (3) The Court may approve of a release in relation to the whole or any part of the estate or notional estate of a person. (4) In determining an application for approval of a release, the Court is to take into account all the circumstances of the case, including whether: (a) it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release, and (b) it is or was, at that time, prudent for the releasing party to make the release, and (c) the provisions of any agreement to make the release are or were, at that time, fair and reasonable, and (d) the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice. (5) In this section: release of rights to apply for a family provision order means a release of such rights, if any, as a person has to apply for a family provision order, and includes a reference to: (a) an instrument executed by the person that would be effective as a release of those rights if approved by the Court under this section, and (b) an agreement to execute such an instrument.

 

4.19 Clause 46 is based on Family Provision Act 1982 (NSW) s 31(1)-(6). This provision allows potential applicants to contract out of any entitlement to family provision while the deceased is still alive. The contracting out is subject to court approval.

4.20 The National Committee noted that the provisions had worked well in New South Wales and had been helpful in resolving disputes between parties before death.²¹ In favouring the inclusion of such provisions, the National Committee made the following observations:

The National Committee was conscious of the possibility of undue pressure being placed upon some people to contract out of future entitlements under family provision legislation. However, the significant advantages of such a procedure [were] seen to outweigh the possibility, particularly in light of the wider group of eligible applicants envisaged by the National Committee’s proposed scheme. In particular, the advantages to parties in settling family affairs were acknowledged. Furthermore, the procedure could be very straightforward and inexpensive - with most approvals being done on the papers.²²

4.21 Clause 47 is based on Family Provision Act 1982 (NSW) s 31(7)-(9) which are part of the provisions allowing parties to contract out of their entitlement to apply for family provision.²³ These provisions enable the Court to revoke its approval of such arrangements in given circumstances.

 

48 Court may determine date of death The Court may, if the date or time of death of a person is uncertain, determine, for the purpose of giving effect to any provision of this Act, a date or time of death that the Court thinks is reasonable for the purposes of the provision.

 

4.22 Clause 48 is based on Family Provision Act 1982 (NSW) s 6(8). This provision is necessary because a date of death of the deceased is required for determining:

• the time limit for making an application for a family provision order²⁴ or notional estate order;²⁵

• the date after which the administrator may distribute the property in the estate;²⁶ and

• the time limits on transactions in relation to property that may be made subject to a notional estate order.²⁷

4.23 Clause 49 is based on Family Provision Act 1982 (NSW) s 33(1). It empowers the Court to order that costs be paid out of the estate or notional estate of the deceased. Clause 49, however, does not include the other provisions in Family Provision Act 1982 (NSW) s 33 which constrain the Court’s ability to award costs in certain circumstances. The National Committee was of the view that the model legislation should not include further specific reference to costs:

but that each jurisdiction should be strongly encouraged to consider the most appropriate method for reducing the costs to the estate and the costs to parties of applications for family provision.²⁸

Courts currently have the ability to award costs against unworthy applicants even though this is not specified in the legislation. However, pre-trial procedures to reduce costs and to encourage settlements should be promoted to deter these matters from going to court. It might also be considered appropriate in some jurisdictions to have the Registrar of the Court handle minor matters or matters involving estates valued at less than a certain amount. Again this is a procedural matter which would not be appropriate to insert in the model legislation.²⁹

4.26 Given the range of persons who may conceivably apply for family provision under cl 7, the New South Wales Law Reform Commission is of the view that it may be appropriate to investigate further the issue of orders for costs, with a view to introducing provisions in legislation or rules or regulations relating to civil procedure and orders for costs. In coming to this view, the Commission notes that Victoria introduced new provisions relating to orders for costs at the same time as the provisions were introduced that allow the Court to order that provision be made for “the proper maintenance and support of a person for whom the deceased had responsibility to make provision”.³¹ The Victorian provision states:

If the Court is satisfied that an application for an order under section 91 has been made frivolously, vexatiously or with no reasonable prospect of success, the Court may order the costs of the application to be made against the applicant.³²

 

50 Regulations The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

 

4.27 Clause 50 confers a regulation making power in terms similar to those whereby Family Provision Act 1982 (NSW) s 36(1) confers the power to make rules of court under the Supreme Court Act 1970 (NSW). The power to make rules of court is conferred by cl 51.

 

51 Rules of Court (1) For the purpose of regulating any proceedings under this Act in or before the Court, rules of court, not inconsistent with this Act, may be made under the [insert name of appropriate Act of jurisdiction] for or with respect to any matter that by this Act is required or permitted to be prescribed by rules of court or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) This section does not limit the rule-making powers conferred by the [insert name of appropriate Act of jurisdiction]. (3) Without limiting subsection (1), a rule may be made conferring jurisdiction on Registrars of the Court to hear and determine specified proceedings under this Act. [This provision may be inserted by jurisdictions in which rules of court relating to proceedings are intended to be made.] [When the Bill is enacted additional provisions will need to be inserted relating to amendments, repeals and savings and transitional provisions.]

 

4.28 Clause 51(1) and (2) are based on Family Provision Act 1982 (NSW) s 36(1) and s 36(2).

4.29 Clause 51(3) allows a rule to be made conferring jurisdiction on Registrars to hear and determine certain proceedings. The National Committee has noted, in the context of containing costs of family provision applications, the desirability in some jurisdictions of having Registrars handle “minor matters or matters involving estates valued at less than a certain amount”.³⁵ The National Committee considered that, ultimately, the jurisdiction of Registrars was a procedural matter to be dealt with by individual jurisdictions.

1. National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision (Queensland Law Reform Commission, Miscellaneous Paper 28, 1997) (“MP 28”) at 126.

2. MP 28 at 126.

3. MP 28 at 150.

4. MP 28 at 150.

5. See also cl 19 and para 2.79-2.80, above.

6. Supreme Court Rules 1970 (NSW) Part 77 r 62, Sch F Form 121, and Part 78 r 91.

7. MP 28 at 95.

8. MP 28 at 33.

9. Clause 9(1), above.

10. MP 28 at 102.

11. MP 28 at 101; National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General (Queensland Law Reform Commission, Report 58, 2004) (“R 58”) at para 4.2.

12. Family Provision Act 1969 (ACT) s 20(2)(a); Family Provision Act 1970 (NT) s 20(2); Administration and Probate Act 1958 (Vic) s 99A(1); Inheritance (Family and Dependants Provision) Act 1972 (WA) s 11. See R 58 at para 4.8-4.14.

13. R 58 at para 4.21. See also MP 28 at 65.

14. See MP 28 at 103.

15. R 58 at para 4.22.

16. New South Wales Law Reform Commission, Uniform Succession Laws: The Law of Wills (Report 85, 1998) Appendix A. See also Wills Act 2000 (NT) s 55(1).

17. Administration and Probate Act 1958 (Vic) s 99A(2); and Inheritance (Family and Dependants Provision) Act 1972 (WA) s 20(4).

18. R 58 at para 4.16.

19. R 58 at para 4.23.

20. R 58 at para 4.25.

21. MP 28 at 106.

22. MP 28 at 107.

23. See MP 28 at 106-107.

24. Clause 9(1).

25. Clause 41(1)(c).

26. Clause 44(1)(a).

27. Clause 31(2).

28. MP 28 at 139.

29. MP 28 at 139.

30. See para 3.21-3.24

31. Administration and Probate Act 1958 (Vic) s 91(1). See cl 7 and para 2.21 above.

32. Administration and Probate Act 1958 (Vic) s 97(7). See Coombes v Ward (No 2) [2002] VSC 84 and Coombes v Ward [2004] VSCA 51 at para 30-33 for an application of the costs provisions under the Victorian Act.

33. See P W Young, “Uniform Family Provision Acts” (2004) 78 Australian Law Journal 763.

34. See Carroll v Cowburn [2003] NSWSC 248 at para 36; Linnane v Bonham [1999] NSWSC 906.

35. MP 28 at 139.