By Ari Katsoulas, Barrister | (02) 8915 2006 | email@example.com
When proceedings under Chapter 3 of the Succession Act 2006 (NSW) (“Family Provision Proceedings”) are commenced, it is incumbent on the applicant to file and serve on the executor or administrator a Notice of Eligible Persons. Paragraph 6 of Practice Note No. SC EQ 7 specifies that:
A notice of eligible persons, including the name and, if known, the address of any person who is, or who may be, an eligible person. A copy of the notice is to be attached to the Summons or to the plaintiff’s principal affidavit.
The administrator then has the task of giving notice of the applicant’s claim to every eligible person as well as any person who is entitled to share in the distributable estate of the deceased. Or in the words of Schedule J of the Supreme Court Rules:
(a) the surviving spouse (if any) of the deceased person,
(b) every child of the deceased person,
(c) every person not mentioned in paragraph (a) or (b) who is entitled to share in the distributable estate of the deceased person,
(d) any person mentioned by the plaintiff in his or her notice served under subclause (1) and not mentioned in paragraph (a), (b) or (c),
(e) any other person who, in his or her opinion, is or may be an eligible person.
The Practice Note prescribes an additional class of persons, being:
any person holding property [of the estate] as trustee or otherwise
While the Practice Note requires an affidavit of service and the Supreme Court Rules specify the wording of the Notice to Eligible Persons, there is no prescribed UCPR form. In that case, it is advisable to adopt UCPR Form 1 and insert the relevant prescribed notice text.
In my experience, it is not uncommon for practitioners acting for the estate to miss the important task of serving notice of the applicant’s claim. While those matters may make their way to mediation – and often settle – the mistake is often caught when completing the Settlement Checklist.
A consequence of a failure to serve the required notices is that a settlement may be compromised by later comer eligible persons or affected beneficiaries who were precluded from raising their financial position or – in some cases – bringing their own competing claim.