Elder law & succession: February 2024

Practice pointer with consent family provision orders

Two recent cases have drawn attention to the correct process for seeking consent orders to resolve family provision claims. The parties in Jurak v Latham [2023] NSWSC 1318 (Meek J) asked the Court to make consent orders in a family provision claim by a child of the late Josef Jurak in circumstances where the Court had 10 weeks earlier made, by consent, final orders in another family provision claim on the deceased’s estate. Those orders expressly disregarded the interests of the new claimant on the basis that his whereabouts were unknown. However, on the same day as the orders were made, the new claimant sought information regarding the deceased’s estate. The Court was not advised that contact had been received from the new claimant.

The Court stated ‘The sheer volume of matters which are filed in or allocated to the Succession & Probate List and, in particular, the volume of matters in which practitioners seek consent orders invoking jurisdiction under the Succession Act 2006 (NSW) necessarily has the effect that the Succession & Probate List Judges are heavily reliant upon practitioners not merely providing proposed orders in an orderly form but, additionally, specifically reliant upon practitioners being vigilant to drawing to the attention of the judges matters in which there is some question regarding whether persons who are or might be affected have been notified, any matters occasioning doubt about the exercise of the jurisdiction and any other unusual aspects attending the matter’ (at [14]).

The Court also addressed specific aspects of family provision claims for the benefit of the profession including:

• the correct procedural requirements when dealing with family provision claims;
• the nature and purpose of family provision substantive law and procedural rules;
• operation of the requirements in practice; and
• the making of consent orders in family provision claims.