Orders made finalising family provision claim and notations made disregarding the interests of an eligible non-applicant son and unidentified ex-nuptial children (if there be any).
Catchwords:
SUCCESSION — Family provision — Notices of Claim — Disregarding power — Identification of the context and purposes of family provision legislation bearing upon s 61 Succession Act
SUCCESSION — Family provision — Outline of the evolution of approach to consideration of possible applicants under family provision legislation in determining claims of applicants
SUCCESSION — Family provision — Construction of s 61 Succession Act in light of context, purpose and text
SUCCESSION — Words and phrases — Family provision — Meaning of “disregard the interests” of any other person (other than a beneficiary) — Meaning of “unnecessary, unreasonable or impracticable” — Examination of “unnecessary, unreasonable or impracticable” terms as applied in family provision caselaw
SUCCESSION — Family provision — Service of Notices of Claim — Discussion of purposes underlying notification regime — Outline of requirements of Notices of Claim, including means and time of service
SUCCESSION — Family provision — Discussion of types of searches to locate persons and limitations of such searches — Discussion of internet and social media searches — Discussion of property searches — Discussion of electoral roll searches — Meaning and discussion of “skip tracing”
SUCCESSION — Family provision — Form of request for s 61 notation — In most cases the request is informally made by email or in proposed short minutes of order or outline of submissions and not formalised by notice of motion
SUCCESSION — Family provision — Guidance as to practical application of search and notification requirements
SUCCESSION — Family provision — Parties and affected persons — Consent orders — The parties asked the Court to make consent orders in a family provision claim by a child of the deceased in circumstances in which another child had not been served with a Notice of Claim and evinced an intention of not being located by the plaintiff or others associated with dealings with his deceased father’s estate — Credible but untested evidence disclosed deceased had ex-nuptial children — Orders sought (and notation made) to disregard the interests of that other child — Further notation made to address position of such, if any, ex-nuptial children
Succession Amendment (Family Provision) Bill 2008…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Liosatos v Liosatos [2025] NSWSC 44
Case
[2025] NSWSC 44
Decision Date
CaseChat Overview and Summary
In the case of Liosatos v Liosatos, the dispute involved family provision claims under the Succession Act, focusing on the requirements for the service of Notices of Claim and the interpretation of certain sections of the Act. The Court of Appeal was tasked with examining the context and purposes of family provision legislation, particularly concerning section 61, which allows the court to disregard the interests of other persons, and the meaning of terms such as "unnecessary, unreasonable or impracticable" in this context.
The court addressed several legal issues, including the extent of the search required to locate potential beneficiaries, the validity of using internet and social media searches, and the application of "skip tracing" techniques. It also considered the form and method of requesting a notation under section 61, and the implications of consent orders in cases where not all potential beneficiaries have been served or located. The court's reasoning involved a detailed examination of the purposes underlying the notification regime and the requirements of Notices of Claim, including the means and timing of service.
The court concluded that the search for potential beneficiaries must be reasonable and practical, taking into account the limitations of available resources and methods. It found that internet and social media searches could be valid tools, but the extent of such searches must be proportionate to the circumstances. The court also highlighted the importance of considering the context and purpose of family provision legislation when interpreting statutory language, particularly in relation to disregarding the interests of other persons. The court's decision provided guidance on the practical application of these requirements and the implications for consent orders when some potential beneficiaries have not been served or located.
The final orders in the case addressed the specific circumstances of the parties, including the notation to disregard the interests of the child who had not been served with a Notice of Claim and the potential position of any ex-nuptial children. The court provided detailed directions for the application, ensuring that the interests of all relevant parties were considered in light of the statutory provisions and the court's interpretation of the relevant case law.