Chapter 9: Family Protection Act 1955, Law Reform (Testamentary Promises) Act 1949, Property (Relationships) Act 1976
All cases will be disposed of within 26 weeks of the date of filing.
9.2 The following directions apply where a claim is brought under:
- the Law Reform (Testamentary Promises) Act 1949; or
- the Family Protection Act 1955 (whether or not a claim is also brought under the Property (Relationships) Act 1976).
9.3 Although the only named respondent in proceedings under the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949 is to be the personal representative of the deceased person against whose estate the claim is brought, applications for relief under those Acts and the Property (Relationships) Act 1976 must be accompanied by a without notice application for directions as to service and for such orders for representation as may be required.
9.4 Pursuant to r 381(2) of the Family Courts Rules 2002, the application for directions for service shall include:
- the date of death of the deceased and the date of grant of probate or letters of administration;
- whether the deceased died testate or intestate and, if testate, a copy of his or her last will with codicils (if any);
- the value of the estate so far as it is known to the applicant;
- the names, addresses, occupations and ages of the beneficiaries under the will or persons entitled on intestacy, as the case may be;
- the names, addresses, occupations and ages of the persons of each class entitled to claim under the Family Protection Act 1955; and
- any other information that is relevant.
9.5 The following directions as to service shall be complied with.
- The non-existence of particular classes of claimant under s 3 of the Family Protection Act 1955 shall be deposed to category by category and not globally, so that the deponent’s attention is drawn directly to every possible class of claimants.
- Where many adults require to be served, every reasonable effort shall be made before approaching the Court to have possible claimants standing in the same interest agree in writing to have one of their number served as representing all having the same interest.
- With the enlarged provisions for grandchildren’s claims, the grandchildren shall be clearly shown by stocks and consideration given to whether:
(i) adult grandchildren standing in the same interest can consent to be served through one of their number as in (b) above; and
(ii) infant grandchildren shall be represented in stocks by counsel appointed by the Court or by an adult parent who is to be served.
9.6 In the case of infant children it is customary to obtain and file the consent of counsel whom it is requested be appointed to represent such children.
9.7 The application for directions for service shall be accompanied by a memorandum prepared by counsel specifying the orders for service which are being sought, together with the reasons for those orders.
9.8 Upon filing the appropriate application (together with an application for directions for service, affidavit in support and memorandum of counsel), the file will be referred to a Judge for the making of directions for service and/or representation.
9.9 The file shall then be placed in a Registrar’s List within 10 weeks for service. Affidavits of service are to be filed only with respect to persons who have taken no steps.
9.10 At the Registrar’s List hearing, counsel shall advise by memorandum if further affidavits are to be filed and the further directions being sought.
9.11 Once all parties have been served and defences filed or the time for filing defences has expired, the Registrar shall arrange for the proceedings to be set down before a Judge for a judicial conference. At the judicial conference the Judge will consider whether the proceedings should progress to a settlement conference or a hearing.
9.12 Unless it is specifically directed otherwise in the direction for a settlement conference:
- five days prior to the settlement conference counsel are to file a memorandum as to:
(i) the issues; and
(ii) the value of property in dispute;
- five days prior to the settlement conference the respondent shall file and serve an affidavit setting out the assets and liabilities of the estate;
- the parties who have taken steps must attend the settlement conference, together with their counsel.
9.13 If the proceedings are unable to be concluded at the settlement conference or no settlement conference is directed, the Judge will direct the proceedings to a hearing.