Date:

05/22/2009

NSW Supreme Court introduces “package of firsts” for disputed deceased estate cases

Disputes over the allocation of deceased estates will be resolved faster, more easily and with less expense in the NSW Supreme Court, thanks to a raft of initiatives to be formally introduced next month.

Under changes prescribed in the Equity Division’s new Practice Note SC Eq 7, to take effect from 1 June, applications under the Family Provision Act and the Succession Act will now:

• require compulsory mediation;
• be case-managed online prior to hearing, if appropriate; and
• use a standard affidavit to provide a more efficient and cheaper resolution process.

Justice Patricia Bergin, Chief Judge in Equity, said the court had been working with the legal profession to change the culture in dealing with disputed estates for some time, and had now moved to formalise a package of firsts.

“For the first time, the NSW Supreme Court has streamlined the entire process to make it easier for people who are grieving and, at times, embroiled in bitter family disputes, to resolve their differences. We are applying a clear, transparent and common sense approach so all parties know exactly what the court requires to quickly and fairly deal with these matters,” Justice Bergin said.

In recognition of the concern about legal costs in these matters, Justice Bergin said: “These changes will save money for those who can often least afford it, as well as identifying potential costs during the process – in real time – rather than at the end of a protracted legal battle.”

The new Practice Note is expected to apply to nearly 30 per cent of the estimated 2,000-plus general equity cases filed each year with the court, saving considerable time and resources.

It is expected that compulsory mediation will facilitate the settlement of an additional 10-15 per cent of cases prior to hearing. It is also expected that online case management in consent cases will be a great cost-saver, reducing the number of times parties are required to attend court prior to trial.

The Practice Note also provides for orders capping the costs that may be recovered by parties, and allows for costs to be awarded against those who include irrelevant material in affidavits because this action abuses the process and wastes time and money.

In annexures to the Practice Note, parties are given clear guidelines to meet court requirements for the affidavit, mediation, online consent hearings and hearings.

“These measures make up a very substantial package of common sense reforms in disputed deceased estate applications and provide a practical and workable model for all courts involved in resolving such matters,” Justice Bergin said.