Liosatos v Liosatos

[2025] NSWSC 44

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Liosatos v Liosatos [2025] NSWSC 44

Hearing dates:

On the papers (following submissions)

Date of orders:

6 February 2025

Decision date:

12 February 2025

Jurisdiction:

Equity - Family Provision List

Before:

Meek J

Decision:

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

Legislation Cited:

Adoption Act 2000 (NSW)

Civil Procedure Act 2005 (NSW)

Commonwealth Electoral Act 1918 (Cth)

Electoral Act 2017 (NSW)

Evidence Act 1995 (NSW)

Family Provision Act 1982 (NSW)

Family Provision Bill 1982 (NSW)

Family Provision Bill 2004 (NSW)

Interpretation Act 1987 (NSW)

Privacy Act 1988 (Cth)

Privacy and Personal Information Protection Act 1998 (NSW)

Statute Law (Miscellaneous Provisions) Act 1985 (NSW)

Statute Law (Miscellaneous Provisions) Bill 1985 (NSW)

Succession Act 2006 (NSW)

Succession Amendment (Family Provision) Bill 2008 (NSW)

Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)

Electoral and Referendum Regulation 2016 (Cth)

Supreme Court Rules 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18

Ainsworth v Redd (1990) 19 NSWLR 78

Alexander v Jansson [2010] NSWCA 176; (2010) 6 ASTLR 432

Andrew v Andrew (No. 3) [2013] NSWSC 286

Atkinson v Crowley [2011] NSWCA 194

Banks v Goodfellow (1870) LR 5 QB 549

Barns v Barns (2003) 214 CLR 169; [2003] HCA 9

Bowers v Matthews [2024] NSWSC 1353

Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727

Cairns v Cairns [2006] NSWSC 367

Cameron v Jeffress [2014] NSWSC 702

Cetojevic v Cetojevic [2006] NSWSC 431

Chalik v Chalik [2024] NSWSC 117

Ciric v Ciric [2015] NSWSC 313

Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494; [1956] HCA 23

Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694

Coric v Grotto; Nelson v Grotto; Estate of Late FA Grotto [2007] NSWSC 1080

Dunne v Dunne [2013] NSWSC 1911; (2013) 12 ASTLR 299

Estate Pascale [2016] NSWSC 443

FGH v NOP [2023] WASCA 177

Field v Inglis (Supreme Court (NSW), Young J, 8 February 1994, unrep)

Gurss v Findley & Buys [2004] NSWSC 229

Hart v Van Son [2014] NSWSC 585

Hill v Hill (Supreme Court (NSW), Young J, 19 May 1997, unrep)

Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113; [1932] HCA 1

In re Coal Economising Gas Company (Gover’s Case) (1875) 1 Ch D 182

InRe GR Newell (Deceased) (1932) 49 WN (NSW) 181

In re Jacob Morris (Deceased) (1943) 43 SR (NSW) 352

In re Lidington [1940] WN (Eng) 279

In Re Simson (Decd.) Simson v National Provincial Bank Ltd [1950] Ch 38

Jodell v Woods [2017] NSWSC 143

Jones (A pseudonym) v Smith (A pseudonym) [2016] VSCA 178; (2016) 15 ASTLR 402

Jurak v Latham [2023] NSWSC 1318

Lieberman v Morris (1944) 69 CLR 69; [1944] HCA 13

Lim v Lim [2023] NSWCA 84

Lloyd v Nelson (1985) 2 NSWLR 291

Luciano v Rosenblum (1985) 2 NSWLR 65

M.A. Bourke (deceased) and T.F.M. Act [1968] NSWR 453

Matthews v Wear [2011] NSWSC 1145

Murphy v Electoral Commissioner (2016) 261 CLR 28; [2016] HCA 36

Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216

O’Brien v McCormick [2005] NSWSC 619

O’Leary v O’Leary& Eccles [2010] NSWSC 1347

Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45

Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278

Page v Page [2016] NSWSC 1218

Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331

Palmer v Dolman [2005] NSWCA 361

Papantoniou v Foundouradakis [2023] NSWSC 1374

Pletersky v Pletersky [2012] NSWSC 277

Plummer v Montgomery [2023] NSWSC 175

Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19

Porte v Couso (Supreme Court (NSW), McLelland J, 16 March 1992, unrep)

Quek v Beggs (1990) 5 BPR 11

Re Eddison; Kildair v Eddison [2022] VSC 251

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Re SJ Hall (Deceased) (1959) SR (NSW) 219

Sammut v Kleemann [2012] NSWSC 1030

Schaefer v Schuhmann [1972] AC 572

Seitz v Morgans [2001] NSWSC 1188

Sgro v Thompson [2017] NSWCA 326

Shelley v Prager [2020] NSWSC 1393

Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40

Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522

Somogy v Kune [1999] NSWSC 1168

Stanford v Stanford [2021] NSWSC 1469

Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114

Stokes v Stokes [2023] NSWSC 1223

Stone v Stone [2016] NSWSC 605

Syndicate Mortgage Solutions Pty Ltd v El-Sayed [2009] NSWSC 207

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; (2011) 288 ALR 385

Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641

Vasiljev v Public Trustee [1974] 2 NSWLR 497

Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11

Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock (2023) 111 NSWLR 210; [2023] NSWCA 71

Westpac Banking Corporation: Application of Xiao [2024] NSWSC 429

Zirkler v McKinnon [2002] NSWSC 285

Texts Cited:

Atherton, Rosalind F, “‘Family’ and ‘Property’: A history of testamentary freedom in new South Wales with particular reference to widows and children” (PhD Thesis, University of New South Wales, 1993)

Atherton, Rosalind F, “The Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW): Husband’s Power v Widow’s Right” (1990) 6 Australian Journal of Law and Society 97

Australian Electoral Commission, “Confirm my enrolment” (WebPage) (see endnotes for accessible link)

Australian Electoral Commission, “Managing the Commonwealth electoral roll” (WebPage) (see endnotes for accessible link)

Australian Electoral Commission, “National and State Offices” (WebPage) (see endnotes for accessible link)

Bowyer, Geoff, “Succession Law Changes Too Harsh” (October 2014) 88 Law Institute Journal 4

Boyd, Danah and Nicole Ellison, “Social Network Sites: Definition, History, and Scholarship” (2008) 13 Journal of Computer-Mediated Communication 210

Dal Pont, G E, Law of Succession (3rd ed, 2021, LexisNexis)

Englefield, Leonie, Australian Family Provision Law (2011, Thomson Reuters)

Explanatory Note to the Family Provision Bill 1982 (NSW)

Explanatory Note to the Statue Law (Miscellaneous Provisions) Bill 1985

Explanatory Note to the Succession Amendment (Family Provision) Bill 2008

Handler, Leslie and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis)

Hastings, Roland and George Weir, Probate Law and Practice (2nd ed, 1948, The Law Book Co of Australasia Pty Ltd)

Herzfeld, Perry and Thomas Prince, Interpretation (3rd ed, 2024, Thomson Reuters)

Holmes, Oliver Wendell Jr., The Common Law (1881, Little, Brown & Co) at 1

Macquarie Dictionary, online ed

Museums of History New South Wales, “Electoral rolls guide” (WebPage) (see endnotes for accessible link)

National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision, Queensland Law Reform Commission, Miscellaneous Paper 28 (December 1997)

National Library of Australia, “Electoral rolls research guide” (WebPage) (see endnotes for accessible link)

Netcraft, “January 2025 Web Server Survey” (WebPage) (see endnotes for accessible link)

New South Wales Electoral Commission, “Electoral roll” (WebPage) (see endnotes for accessible link)

New South Wales Government Gazette, No 120, 26 August 1983; No 60, 11 April 1986; No 38, 20 February 2009

New South Wales Land Registry Services (WebPage) (see endnotes for accessible link)

New South Wales Law Reform Commission, Report 110 (2005) – Uniform Succession Laws: Family Provision (May 2005)

New South Wales Law Reform Commission, Report 28 (1977) – Testator’s Family Maintenance and Guardianship of Infants Act, 1916 (June 1977)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 November 1982, 21 November 1985, 25 September 2008, 21 October 2008

New South Wales Legislative Council, Parliamentary Debates (Hansard), 30 August 1916, 1 December 1982, 27 November 1985, 26 June 2008, 24 September 2008

Philip, Geofrey and Charles Dawson Irwin, Parker’s Practice in Equity (New South Wales) (2nd ed, 1949, The Law Book Co of Australasia Ltd)

Practice Note SC EQ 7

Sciencepod, “A historical look: When was social media invented?” (WebPage) (see endnotes for accessible link)

Spatial Portal, “Map Viewers” (WebPage) (see endnotes for accessible link)

Statista, “Volume of data/information created, captured, copied, and consumed worldwide from 2010 to 2023, with forecasts from 2024 to 2028” (WebPage) (see endnotes for accessible link)

Thomson Reuters, “What is skip tracing? An overview” (WebPage) (see endnotes for accessible link)

Trove, “Trove Content” (WebPage) (see endnotes for accessible link)

Trove, “What is Trove” (WebPage) (see endnotes for accessible link)

Wright, RJ Davern, Testator’s Family Maintenance in Australia and New Zealand (1st ed, 1954, The Law Book Co of Australasia Ltd)

Category:

Procedural rulings

Parties:

Dilsa Liosatos (Plaintiff)
Andres Liosatos (Defendant)

Representation:

Counsel:
M Bradford (Plaintiff)
P Muscat (Defendant)
Solicitors:
Lees Luke Lawyers (Plaintiff)
McNamara & Associates (Defendant)

File Number(s):

2024/253694

JUDGMENT

Introduction

1. HIS HONOUR: Profound purposes in law including natural justice, timely disposition of claims, and the finality and certainty of outcomes are significant threads woven into the fabric of each family provision claim addressed by the Court, not least in proposed consensual outcomes.

2. The plaintiff, one of the four known children of the late Andres Gerosimo Liosatos (deceased), seeks to have the Court make consent orders resolving her claim. The legislative framework for finalising the family provision claims requires establishing that persons who are required to be served with a Notice of Claim have either been so served or that applicable conditions exist such as would enable the Court to make a determination that their interests should be disregarded.

3. Two notification issues arise in this case. First, there is some credible but untested evidence that in or about the 1960s in Panama, the deceased fathered a number of ex-nuptial children, the identification and location of which would now be well-nigh impossible. Secondly, endeavours to formally notify one of the plaintiff’s known siblings, a brother George, by means of service of a Notice of Claim have been thwarted in that he has taken steps to relocate with the evinced intention of not being able to be traced by his sister or others associated with dealings with his father’s estate. Further, the notification attempts have been hampered by a lack of any “real co-operation” on the part of the defendant. ^[1]

   1. Affidavit, Neil Kevin Hartley, 31 October 2024 at [2].

4. The above circumstances invite consideration of the question of whether the Court should determine to disregard the interests of children of a deceased, who would otherwise be required to be served with a Notice of Claim, on the basis that service of any such notice is “unnecessary, unreasonable or impracticable in the circumstances of the case” within the meaning of s 61(2)(b) of the Succession Act 2006 (NSW) (Succession Act). ^[2]

   2. In this judgment, any section references will be to the Succession Act unless otherwise specified.

5. Whilst the facts of this case are unique, and the practitioners have ably assisted the Court in addressing the above question, it is evident from my experience of matters within the Succession List that there is a large degree of uncertainty on the part of some practitioners as to:

1. what notification requirements arise in family provision cases;

2. what steps may permissibly be taken to search for and locate a relevant person required to be notified;

3. what in any given case amounts to sufficient attempt at notification; and

4. the meaning and nature of the “unnecessary, unreasonable or impracticable” terms which enliven the s 61(2)(b) power to disregard interests of persons who ought to be notified of the claim in the proceedings, but have not been notified, and what guides the exercise of such power.

6. That uncertainty has led to varied and ad hoc practice amongst practitioners regarding attempts at locating and notifying relevant persons and requests to disregard their interests.

7. Virtually every family provision case that is ever determined under the Succession Act involves some judicial consideration of s 61. The four matters I have listed above lie at the heart of the practical operation of the family provision. Yet there is a paucity of caselaw which analyse the second to fourth matters in a systematic way. Few, if any, cases provide any detailed guidance as to those matters.

8. This judgment ventures that task and seeks to bring a degree of purposive and principled coherence to search and notification requirements. That coherence is aided by an understanding of the purposes of the search and notification requirements and an awareness of the issues or obstacles which arise and impede those purposes.

9. My guidance, as outlined below, has no prescriptive intent, thus recognising that some degree of flexibility in practically effecting the purposes to be achieved is important.

10. It is convenient to address these matters by reference to a number of topics as follows:

1. the context and purposes of family provision legislation;

2. the evolution of approach ^[3] to consideration of possible applicants under family provision legislation;

   3. In New South Wales.

3. the construction of s 61 of the Succession Act;

4. types of notification issues;

5. service of Notices of Claim;

6. search options and their limitations for locating persons to be served;

7. request for a s 61 determination; and

8. guides as to the practical application of search and notification requirements.

11. Materially, for the reasons set out below, I am satisfied that the evidence now establishes that two eligible persons, namely the deceased’s second wife (Lilia) and his child with her (Alberto), have each been served with a Notice of Claim. I am also satisfied that the interests of George and the deceased’s ex-nuptial children (if there be any) should be disregarded on the basis that it is unnecessary and/or impracticable to serve George and that it is impracticable and unnecessary for the parties to now attempt to seek to identify, locate and serve any such ex-nuptial children.

Context and purposes of family provision legislation

12. The background to the introduction of family provision legislation in New South Wales in the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) (TFM Act) is chronicled by Rosalind F Atherton (as Professor Croucher then was) in her insightful and learned article “The Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW): Husband’s Power v Widow’s Right” (1990) 6 Australian Journal of Law and Society 97 (Atherton).

13. Purposive themes which are evident in the debates leading to the inception of the TFM Act include concern for protection and a recognition of women’s rights in their position as widows, redressing the imbalance, at least in part, caused by the demise of the common law right of dower (Atherton at 98) and public prominence of issues of injustice arising in a number of cases from the vagaries of testators leaving Wills making no provision or inadequate provision for persons to whom they had a moral obligation to provide. ^[4]

    4. New South Wales Legislative Council, Parliamentary Debates (Hansard), 30 August 1916 at 1239 per the Honourable John Daniel Fitzgerald.

14. Decades passed before one of the most revolutionary reforms of estate law in the history of New South Wales occurred with the enactment of the Family Provision Act 1982 (NSW) (FPA), commencing in September 1983.

15. The FPA reflected the learning derived from over 65 years of experience with the TFM Act and the social change that had occurred since its enactment. Legislative purposes included a widening of both the class of persons entitled to apply for provision from a deceased person’s estate and the scope of property from which the provision might be made, ^[5] including notional estate (a concept in Australia unique to New South Wales). Other purposes involved a revision both of the time within which an application was required to be made ^[6] and the time at which the Court assessed the inadequacy of provision ^[7] with the FPA providing that the circumstances “at the time the order is made” should be considered. ^[8]

    5. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 November 1982 at 2769 per the Honourable Francis John Walker.

    6. Generally speaking, 18 months from the date of death (see s 16(1)(b) of the FPA) as distinct from 12 months from grant of probate or letters of administration (or resealing): s 5 TFM Act.

    7. The FPA adopted the dissenting views of Fullagar and Williams JJ in Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 at 521 and 513-4 respectively; [1956] HCA 23 (Coates). See Rosalind F Atherton, “‘Family’ and ‘Property’: A history of testamentary freedom in new South Wales with particular reference to widows and children” (PhD Thesis, University of New South Wales, 1993) at 234-7, 295-6.

    8. See FPA ss 7, 8, 9(2).

16. Important but less radical reforms were also made with the family provision amendments to the Succession Act commencing in March 2009. The catalyst for further family provision reform included a desire for uniformity in succession law across Australia (which despite efforts has not been achieved). ^[9] Purposes underlying the family provision amendments to the Succession Act included reforms to address widely held concerns about the increasing and disproportional costs of family provision proceedings. ^[10] The costs issue was sought to be addressed by a number of different strategies including: ^[11] regulation making power with respect to costs and advertising described by the Attorney General as “often aggressive, unrealistic and seeks to exploit the vulnerable”; and implementing the Government’s objective to encourage settlement of family provision matters before they go to a hearing, if possible, by requiring referral of all matters to mediation before making a family provision order unless there are special reasons why the matter should not be mediated. Those objectives are evident in the provisions of ss 98(1), (2), (4)(b) and 99(2) of the Succession Act.

    9. Bowers v Matthews [2024] NSWSC 1353 (Bowers v Matthews) at [68]-[73].

    10. New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 June 2008 at 9423-9424 per the Honourable John Hatzistergos.

    11. Ibid at 9424.

12. Gleeson CJ in speaking of the general scheme and purposes of family provision legislation in Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 (Barns) stated at [2]: ^[12]

Such legislation was enacted in order to subject freedom of testamentary disposition to discretionary curial intervention in certain classes of case, where moral rights and obligations of support were disregarded. It took as its focus of attention the family, which his Lordship described as “the social and legal institution within which these … rights and obligations are worked out” ^[13] .

His Honour continued at [34]:

The general principle of public policy on which the Act was based was described… as “the making of provision for the maintenance of members of a family who are found to be in need of such maintenance when the family tie has been broken by death”. ^[14]

12. See also Gleeson CJ in Barns at [3]-[4] and [38].

13. Citing the comments of Lord Simon of Glaisdale in Schaefer v Schuhmann [1972] AC 572 at 596, a decision of the Privy Council on an appeal concerning the TFM Act; see also G E Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis) (Dal Pont) at [15.9].

14. Citing Jordan CJ in In re Jacob Morris (Deceased) (1943) 43 SR (NSW) 352, in a passage adopted on appeal to the High Court by Latham CJ in Lieberman v Morris (1944) 69 CLR 69 at 78; [1944] HCA 13.

18. The Court of Appeal has described the link between the moral obligation of testators, family provision purposes and testamentary freedom in the following way: ^[15]

…This moral obligation ^[16] of testators, the enforcement of which is facilitated by the family provision legislation, reflects an assumption inherent in our system of succession law that testators will exercise their testamentary freedom with moral responsibility, so as to make provision for those who would be regarded as having legitimate claims on their bounty - to the point that ability to appreciate this moral obligation has been said to be an essential element of testamentary capacity ^[17] ….

15. Alexander v Jansson [2010] NSWCA 176; (2010) 6 ASTLR 432 (Alexander v Jansson) at [18] per Brereton J, Basten JA at [1] and Handley AJA at [2] agreeing.

16. See Alexander v Jansson at [18] per Brereton J, Basten JA at [1] and Handley AJA at [2] agreeing. On the point of “moral duty”, Brereton J stated earlier in the paragraph that it “has traditionally informed the exercise of jurisdiction under the Family Provision Act and its predecessors and, although some of the observations in Singer v Berghouse (No 2) might for a time have suggested otherwise, it is now clear continues to do so [Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191; Palmer v Dolman [2005] NSWCA 361, [74]; and see now (NSW) Succession Act 2006, s 80(2)(b)…”.

17. Citing Cockburn CJ, speaking for the Court of Queen’s Bench in Banks v Goodfellow (1870) LR 5 QB 549, 563, 565.

19. The above and other cognate purposes or benefits have been expressed in caselaw ^[18] and texts ^[19] in a number of ways.

    18. See e.g. Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331 (Page) per Basten JA at [19].

    19. See e.g. Dal Pont at [15.9] citing Geoff Bowyer, “Succession Law Changes Too Harsh” (October 2014) 88 Law Institute Journal 4, on the role of the family provision jurisdiction in practically addressing out-of-date wills and eschewing arguments over undue influence or capacity (which are often costly by reason of being evidence-intensive).

20. Broadly speaking, the essential purposes and many elements of the original family scheme has been maintained through the various legislative changes. However, consideration of the broad scheme must necessarily recognise that whilst there is a form of common ancestry to the legislation within the six Australian states and two territories, the terms were never identical and have become increasingly diverse. ^[20] Nonetheless, Dixon CJ in Coates considered that the legislation in the various jurisdictions in Australia is all grounded on the same policy and that refined distinctions between the legislation is to be avoided. ^[21] Gummow and Hayne JJ in Barnes confirmed that approach. ^[22]

Evolution of approach to consideration of possible applicants

20. Leonie Englefield, Australian Family Provision Law (2011, Thomson Reuters) at 2.

21. At 507.

22. At [43], in the context of considering the Inheritance (Family Provision) Act 1972 (SA).

1916 – TFM Act

21. Initially under the TFM Act, subject to rules of Court being made, applications for provision were to be made by motion and the practice of the Equity Court was to apply. ^[23] The procedure under the TFM Act contemplated that individual applications for family provision would be brought by each person seeking relief. ^[24] However, in practice, the Court permitted two or more applications to be made on the one motion. ^[25] In any event where more than one application was brought (in separate proceedings), the procedure in Equity was for claims to be heard together. ^[26]

    23. Section 22 of the TFM Act (helpfully extracted in Roland Hastings and George Weir, Probate Law and Practice (2nd ed, 1948, The Law Book Co of Australasia Pty Ltd) at 480).

    24. In re White (Deceased) (1932) 49 WN (NSW) 178 (Re White) at 178 per Harvey CJ in Eq.

    25. Ibid at 178-9.

    26. Ibid at 178.

22. William Parker, the then Master in Equity, notes that, as at 1930, no rules of Court had been made and thus by s 22 of the TFM Act, applications were still made by filing a motion. ^[27] By 1 March 1947, TFM Act applications were to be made by originating summons. ^[28]

    27. William Arthur Parker, Practice in Equity (New South Wales) (1st ed, 1930, The Law Book Co of Australasia Ltd) at 645.

    28. Geofrey Philip and Charles Dawson Irwin, Parker’s Practice in Equity (New South Wales) (2nd ed, 1949, The Law Book Co of Australasia Ltd) at 748-750; RJ Davern Wright, Testator’s Family Maintenance in Australia and New Zealand (1st ed, 1954, The Law Book Co of Australasia Ltd) (Davern Wright) at 174-175. Both texts extract the then applicable Rules made in December 1946 and operating from 1 March 1947.

23. Notice of the application was required to be served by the applicant on the executor of the deceased’s estate. ^[29] The purpose of this was to discourage any person other than the executor from making themselves responsible for defending the deceased’s Will. ^[30] The TFM Act did not contain any express provision like section 61 of the Succession Act. Nor did the Rules of Court make mandatory provision for service of notice on other potential eligible persons. ^[31] However, the Court was empowered to order such other persons as it thought fit to be served with notice of the application. ^[32] Further, as a matter of practice there was recognition of the importance of establishing what other family provision claims might be made in relation to an estate. ^[33]

    29. TFM Act s 3(1). Later on, the rules expressly provided for the summons to join as a defendant every executor or administrator with certain exceptions: see Division 6 Rule 25(2) of the Supreme Court Rules 1970 (NSW) (SCR) extracted as at 4 May 1973 in Davern Wright at 246.

    30. Vasiljev v Public Trustee [1974] 2 NSWLR 497 (Vasiljev) at 503B per Hutley JA, Hardie and Reynolds JJA agreeing at 498G.

    31. See SCR Div 6 r 25 extracted as at 4 May 1973 in Davern Wright at 246.

    32. TFM Act s 3(1).

    33. Re White at 178 per Harvey CJ in Eq.

24. Harvey CJ in Eq explained that if more than one application was made they must be heard together because “the allowance of one application lessens the fund which will be available for the maintenance of the other”. ^[34] Specifically, his Honour stated that, wherever there are separate applications, the applicants or executors should apply to the Court for the consolidation ^[35] of the matters at the earliest possible opportunity. His Honour considered that the applicant should enquire from the executor whether he had reason to suppose that other applications were “pending or threatened”; and that if the applicant did not so inquire, the executor had a duty to inform the applicant that there were other applications pending. ^[36] The purpose in so doing was to ensure that costs were kept to a minimum and duplication of evidence avoided. ^[37]

    34. Ibid.

    35. When multiple proceedings are consolidated, they thenceforth become a single proceeding. This is different to proceedings being heard at the same time, where they remain separate proceedings: Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; (2011) 288 ALR 385 at [67] per Campbell JA.

    36. Re White at 178.

    37. Ibid; Davern Wright at 42.

25. Executors were expected to place before the Court all relevant evidence relating not only to the case generally but any circumstances which the Court should take into consideration in relation to any particular gift in the Will. ^[38] This included evidence as to the financial position and needs of beneficiaries. ^[39] Moreover, it was recognised that in special cases where very substantial benefits conferred on beneficiaries, it could be proper for beneficiaries to intervene and be separately represented, though generally such separate representation should not be necessary. ^[40]

    38. In the Will of W.F. Lanfear (Deceased) (1940) 57 WN (NSW) 181 (Lanfear) at 183 per Williams J, speaking with the concurrence of Nicholas CJ in Eq; Re SJ Hall (Deceased) (1959) SR (NSW) 219 (Hall) at 226-227; Vasiljev at 503C-504D per Hutley JA, Hardie and Reynolds JJA agreeing.

    39. Vasiljev at 504D per Hutley JA, Hardie and Reynolds JJA agreeing.

    40. Lanfear at 183.

26. Thus, there was a procedural mechanism for corralling all potential family provision claims in relation to an estate to ensure that all claims were determined at once. However, there were no specific legislative measures designed to address the inferences that should arise and the assessment the Court should make of claims where other eligible persons to whom the deceased or testator owed a “moral duty” had not at the time of hearing of a particular claim applied for a family provision order.

27. Different approaches to joinder of parties were taken in other jurisdictions. Thus in New Zealand, the usual practice was to name as defendants the executor and any persons who may be prejudiced by an order granting relief. ^[41] In England in 1940, Farwell J took the view that every person whose rights under the Will might be affected by the relief asked for, ought either to be a party or else to be represented by a party appointed by order to represent him. ^[42] However by 1950, Vaisey J doubted that all beneficiaries needed necessarily to be joined and expressed a more flexible approach to the joinder of affected parties, having regard at least in part to the risk or likelihood that legatees might bear the burden of an order for provision as distinct from the normal (but by no means invariable) practice that provision would necessarily come out of the residue of the estate. ^[43]

    41. Vasiljev at 504E.

    42. Davern Wright at 46 citing In re Lidington [1940] WN (Eng) 279.

    43. In Re Simson (Decd.) Simson v National Provincial Bank Ltd [1950] Ch 38 at 44-45; Davern Wright at 46-47.

1968 – Re Bourke

28. The assessment of claims in a context where not all eligible persons had brought claims was the subject of comment by Street J in M.A. Bourke (deceased) and T.F.M. Act [1968] 2 NSWR 453 (Re Bourke). In that case, the testatrix left a widow and nine adult children with the only substantial asset of the estate being a matrimonial home in which the testatrix had given a life interest to the widower and the remainder for religious purposes. One of the adult children, a married daughter, made an application for family provision. The other children and the widower all said that they did not wish to challenge the Will or make any claim on the estate. ^[44] The widower had no assets apart from his interests as life tenant and his income was limited to the old age pension. ^[45] The eight other children were in varying degree of financial need, similar to the position of the applicant. ^[46]

    44. At 455.

    45. At 454.

    46. Ibid.

29. Street J dismissed the claim. His Honour addressed a submission that the Court should only consider the testatrix’s duty owed to the applicant, as none of the other eight children and the husband came forward to claim the existence and breach of any duty to them. Whilst his Honour considered that the family provision jurisdiction involved the Court passing judgment on the claim as between the testatrix and the applicant, the assessment of the claim could only be determined after an appreciation of all other testamentary obligations. ^[47] His Honour went on to state as follows: ^[48]

The duty to the present applicant is not to be considered remote from, or unrelated to, such testamentary duties as the testatrix may be seen to have owed to other members of her family. Whether or not the members of the family to whom such testamentary duties may have been owed come forward to propound their claims is, perhaps, irrelevant. In theory it is possible for the husband or any of the other children in the present case to make a claim under the statute, assuming, of course, he or she is within the period fixed by the Act for bringing of such a claim. The fact that none has presently come forward does not justify the Court in placing aside the necessity of considering the moral duty owed to such other persons, and the prospect, albeit in the present case remote, of such other claims coming forward and having to be met. This prospect is not the ground for the decision I have reached; but it exemplifies the validity of taking into account, when determining the existence of a duty on facts such as those before me, the existence of duties owed to other persons entitled in a moral sense to share in the distribution of the estate of a testator.

47. At 456.

48. Ibid.

30. Relevantly, two points may be observed. First, his Honour noted that the fact that no other claimant had then come forward did not justify the Court in placing aside the necessity of considering the “moral duty” which the testatrix owed to other family members. Secondly, his Honour (in obiter) admitted of the possibility that other claims might be made and that the prospect of such claims having to be met out of the estate was something that the Court could not ignore.

31. One explanation for the above position is given by Dickey to the effect that the moral claims of others to provision from the deceased’s estate must be taken into account if they have not received adequate provision but are entitled to apply. This was said to be because under the TFM Act the adequacy of any provision made for an applicant depends upon factors existing at the time of the deceased’s death and not on whether the potential applicant for family provision chooses to commence proceedings. ^[49]

    49. Anthony Dickey, Family Provision After Death (1992, The Law Book Company Ltd) at 119.

1970’s – Reform

32. Re Bourke, a case otherwise unremarkable in and of itself, became a catalyst for public comment regarding deemed uncertainties and injustices in the determination of claims. One particular perception of the decision in Re Bourke is that it had the effect that the Court was obliged to assess claims of certain applicants on an artificial or at least undesirable basis. Thus, it was said: ^[50]

….The effect of this decision is that if a man leaves an estate of $10,000 to the Home for Homeless Cats and leaves a widow and two needy children and the widow for religious or other reasons declines to make an application, the children will be unsuccessful in their applications because had the widow made an application she would have obtained the whole estate and so the testator had no moral duty towards the children….

50. See New South Wales Law Reform Commission, Report 28 (1977) – Testator’s Family Maintenance and Guardianship of Infants Act, 1916 (June 1977) (LRC Report 28) at [2.9.11], citing concerns of one group of commentators.

33. In the 1970s the New South Wales Law Reform Commission (LRC) was given a reference to review family provision law. ^[51]

    51. See ibid at [1.1] for the precise terms of reference.

34. The LRC published a Working Paper in January 1975, the subject of extensive distribution and comment, ^[52] and produced LRC Report 28 in 1977, recommending a draft Family Provision Bill (Draft Bill). ^[53] The Chairman of the LRC re-examined the original proposals and a proposed bill for a Family Provision Act (and cognate legislation) was introduced into the New South Wales Parliament in November 1982. ^[54]

    52. See ibid at [1.4].

    53. See ibid at appendix B.

    54. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 November 1982 at 2769 per the Honourable Francis John Walker.

35. Dilemmas arising from the decision in Re Bourke were identified by the LRC by reference to as follows: ^[55]

The quick determination of most legal proceedings is desirable. It is particularly so in the case of proceedings for family provision. Beneficiaries in estates want to be sure of their entitlements and representatives of deceased persons want to complete their duties. Yet the Court is sometimes faced with the situation that the case for only one of many possible applicants is before it; one or more applicants may commence proceedings at a later date and all claims need not be heard together. ^[56]

…

If all eligible applicants were parties to particular proceedings, the Court would be better placed to evaluate the testamentary obligations of the deceased person concerned and to determine priorities between competing applicants. Moreover, the Court would be better placed to evaluate the testamentary obligations of a deceased person if a beneficiary of that person were heard to say why the provision made for him by the deceased should not be disturbed by the Court.

55. LRC Report 28 [2.9.10].

56. The Report then went on to cite Re Bourke.

36. Section 9 of the Draft Bill addressed notification to potential applications as follows: ^[57]

(3) Where it appears to the Court that the deceased person has, or may have, left each of two or more eligible persons without adequate provision for his proper maintenance, education or advancement in life, and of those persons one or more apply for provision under this Act within the time allowed by or under this Act but one or more do not so apply, the Court may act under subsection (1) (b) in relation to any applicant on the footing that the deceased person did not leave without adequate provision for his proper maintenance, education or advancement in life any person who has chosen not to apply for provision under this Act.

(4) For the purposes of subsection (3), the Court may determine that a person has chosen not to apply for provision under this Act if the prescribed notice has been served on him and he has not within the time limited by the notice applied for provision under this Act.

57. LRC Report 28 Appendix B at pg 93.

37. An earlier form of the Draft Bill which formed part of the Working Paper contained a provision enabling the Court to order that a person be joined as a party to proceedings under the proposed Act if it is necessary or desirable to ensure that all matters in dispute are effectually and completely determined and adjudicated upon. ^[58]

    58. See LRC Report 28 at [2.9.11]. The provision was based on the SCR Pt 8 r 8.

38. The LRC acknowledged that the perception of Re Bourke gave rise to some practical difficulties. However, it considered that the proposed ss 9(3) and (4) set out above provided the means for overcoming them. The intent was to address the perceived injustice arising from problematic cases such as the one posited in the LRC Report 28 ^[59] by allowing the Court to deal with an applicant’s claim on the footing that an eligible person (such as a widow) who had not applied for provision had not been left without adequate provision. ^[60]

    59. The “Home for Homeless Cats” example recited above, see LRC Report 28 at [2.9.11].

    60. LRC Report 28 at [2.9.11]-[2.9.12].

1983 – FPA

39. The Explanatory Note for the Family Provision Bill 1982 stated in relation to clause 20 that it “permits the Court to disregard the interests of persons who have not made application for provision”.

40. In his Second Reading Speech, the Honourable Francis John Walker made no specific mention of clause 20. ^[61] However, the Honourable David Paul Landa stated that “Clause 20 will allow the court to disregard the interests of any eligible persons who have not made application in relation to the deceased person. However, notice must be given to such eligible persons unless the court is of the opinion it would be unreasonable or impracticable to do so.” ^[62]

    61. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 November 1982 at 2769-2771.

    62. New South Wales Legislative Council, Parliamentary Debates (Hansard), 1 December 1982 at 3600-3601.

41. The FPA commenced on 1 September 1983. ^[63] Section 20 of the FPA as enacted did not reflect the terms of the Draft Bill (recommended by the LRC) but did reflect the drafting of the final form of the Bill as introduced to Parliament. It was in the following form:

Court may disregard persons who have not applied for provision.

20 (1) On an application in relation to a deceased person, the Court may disregard the interests of any eligible persons who have not made an application in relation to the deceased person.

(2) Except as provided in subsection (3), the Court shall not disregard the interests of an eligible person unless it has caused notice of an application before it and its intention to disregard the interests of the eligible person to be given or served upon the eligible person in such manner as may be determined by the Court.

(3) The Court is not obliged to cause a notice to be given or served as referred to in subsection (2) where, in its opinion, it would be unreasonable or impracticable to do so.

(4) The Court shall not revoke or alter an order for provision in favour of an eligible person to allow the making of a further order for provision in favour of another eligible person unless the other eligible person shows sufficient cause for not having applied for an order for provision in his favour before the firstmentioned order was made.

63. With the exception of sections 1 and 2, which commenced on the date of assent. See FPA s 2 and New South Wales Government Gazette, No 120, 26 August 1983 at 3935.

42. The effect of s 20 as originally enacted was addressed by leading Equity judges within a few years of the commencement of the FPA.

43. In Luciano v Rosenblum (1985) 2 NSWLR 65 (a decision more frequently cited ^[64] as providing guidance in relation to provision that may be appropriate for a widow), Powell J opined that it was “tolerably plain” that the terms of s 20 were directed to fulfilling the function of overcoming problems likely to be caused by the decision in Re Bourke. It was his Honour’s opinion that it was not directed towards enabling the Court to disregard “the claims of those to whom the deceased may have a moral obligation which obligation had been adequately discharged by the provision made for that person in the deceased’s will”. ^[65]

    64. See e.g. Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 (Steinmetz v Shannon) at [37], [48] per White JA; [102], [104] per Brereton JA.

    65. See at 69C-D.

1986 – Amendments

44. Section 20 was amended in 1985 by Statute Law (Miscellaneous Provisions) Act 1985 (NSW), ^[66] which commenced on 11 April 1986. ^[67]

    66. See s 5, Sch 6.

    67. Statute Law (Miscellaneous Provisions) Act 1985 (NSW) s 2(4); New South Wales Government Gazette, No 60, 11 April 1986 at 1562.

45. The amendment was in two parts.

46. First, it replaced section 20(2) with the following wording:

(2) The Court shall not disregard the interests of an eligible person unless—

(a) notice of the application before it and of the Court’s power to disregard those interests has been served upon the eligible person in the manner and form prescribed by rules of court; or

(b) the Court has determined that service of such a notice on that person is unnecessary, unreasonable or impracticable.

47. Secondly, it omitted section 20(3).

48. The catalyst for the amendment was in part alluded to in the Explanatory Note accompanying the Statute Law (Miscellaneous Provisions) Bill 1985 which stated relevantly that: [68]

Schedule 6 amends section 20 of the Family Provision Act 1982 to allow notice of an application under that Act to be served on certain persons in accordance with rules of court. At present the Supreme Court is required to give directions as to the service of such notices.

68. At 3.

49. The Honourable Terrance William Sheahan (Attorney General) in his Second Reading Speech stated: ^[69]

Section 20 of the Family Provision Act makes provision for those circumstances in which a court may disregard the interests of eligible persons who have made (sic) ^[70] an application in relation to the estate of a deceased person. The amendment in schedule 6 to the bill will make it easier for the court to determine that it would be unreasonable to cause a notice to be given and thus avoid unnecessary waste of time where there is no expectation that any other eligible person would be likely to make an application under the Act.

69. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 November 1985 at 10350.

70. It is evident that the adverb “not” is missing from the verb “made”.

50. The Honourable Barrie John Unsworth in his Second Reading Speech stated: ^[71]

Section 20 of the Family Provision Act makes provision for those circumstances in which a court may disregard the interests of eligible persons who have made (sic) ^[72] an application in relation to the estate of a deceased person. It will be amended in schedule 6 of the bill to make it easier for a court to determine that it would be unreasonable to cause a notice to be given in respect of applications under the Act.

71. New South Wales Legislative Council, Parliamentary Debates (Hansard), 27 November 1985 at 10870.

72. Repeating the mistake in Mr Sheahan’s Second Reading Speech with the adverb “not” missing from the verb “made”.

51. The amendments effected two purposes referred to in the Explanatory Note and Second Reading Speeches.

52. First, the original wording of s 20(2) envisaged that the “notice” to be served on eligible persons would be simply in a manner determined by the Court. The change by adding the word “form” fixed the type of notice to be served by reference to both such manner and form prescribed by rules of court.

53. Secondly, the amendments introduced the adjective “unnecessary” as an additional conditional ground for the Court to disregard interests.

54. However, by comparison of the original and amended provisions of s 20 a further third change is evident.

55. Relevantly, s 20(3) (original form) provided (emphasis added):

The Court is not obliged to cause a notice to be given or served as referred to in subsection (2) where, in its opinion, it would be unreasonable or impracticable to do so.

56. Conversely s 20(2)(b) provided (emphasis added):

the Court has determined that service of such a notice on that person is unnecessary, unreasonable or impracticable

57. The deletion of the entirety of s 20(3) and the amendment of s 20(2) saw the task of the Court’s decision described from being an “opinion” to a determination.

58. The Macquarie Dictionary, online ed, provides various choices of meaning for the noun opinion, including, relevantly:

noun 1.  judgement or belief resting on grounds insufficient to produce certainty.

2.  a personal view, attitude, or estimation: public opinion.

3.  the expression of a personal view, estimation, or judgement: to give an opinion on tariffs.

4.  Law

a.  Also, advisory opinion. formal or non-binding advice as to the legal position relating to some matter, given by a court or by counsel.

b.  the formal statement made by a judge giving the reasons for a judicial decision, particularly in cases dealing with a new aspect of law.

5.  a judgement or estimate of a person or thing with respect to character, merit, etc.

6.  a favourable estimate; esteem.

59. The second choice of the word “determined” in the Macquarie dictionary is stated as having the meaning “decided; settled; resolved”.

60. The purpose for that change of wording is not evident. No cases, so far as I am aware, have analysed or discussed the change.

61. Reviewing caselaw pre and post the amendments I have been unable to discern any material difference between judges forming an “opinion” or making a “determination” in the Court’s task in approaching and applying s 20 of the FPA.

62. The judge in each application of s 20 of the FPA was called upon to form an opinion or determination in light of the relevant facts.

63. Many cases applied s 20 of the FPA simply according to its terms without any particular analysis of its operation. ^[73] However, a few cases elaborated on its operation.

    73. See e.g. Somogy v Kune [1999] NSWSC 1168 at [3] per Bryson J; Gurss v Findley & Buys [2004] NSWSC 229 at [10] per Pearlman AJ.

64. In Hill v Hill (Supreme Court (NSW), Young J, 19 May 1997, unrep), his Honour stated: ^[74]

S7 of the Act requires the court to assess the deceased’s duty or obligation to the plaintiffs having regard to the circumstances at the time of hearing. The assessment is not made in isolation, but with regard to all the claimants on the deceased, except those whose claim the court need not consider because of s20.

Thus in Re Bourke [1968] 2 NSWR 453, a woman died leaving a husband and nine children. She gave her husband a life estate and left the balance to a religious organization. The husband for personal reasons did not make an application under the TFM Act, but a needy adult daughter did. LW Street, J held that as the testatrix’s obligation in the circumstances was to leave the whole of her estate to her husband, she had no duty to make any provision for the plaintiff daughter. Thus, even though the husband had not applied, the daughter’s claim must fail. This is the precise situation to which s20(2) is directed.

However, s20(2) has no wider operation. It does not deal with the situation where the deceased makes adequate provision for a person to whom she owed an obligation by her will or by operation of law, Luciano v Rosenblum (1985) 2 NSWLR 65, 69. It will often be the case that the deceased’s obligation to his or her spouse will be so great that any claim by a meritorious child applicant will fail; see eg King v Foster (NSWCA 7.12.1995, unreported).

Thus the court needs to consider the deceased’s obligation to the defendant and his needs when assessing the plaintiffs’ claims.

Moreover, it must always be remembered that a plaintiff cannot make out a positive case for relief under this Act merely by attacking the worthiness of the person to whom the deceased’s property has passed by will or by operation of law. ….

74. See at BC9702182 pages 10-11.

65. Master McLaughlin in Seitz v Morgans [2001] NSWSC 1188 at [49]-[51] expressed the view that s 20 of the FPA was directed at issues arising from multiplicity of claims and that “it is intended by that provision that all claims against an estate should be heard and determined at the same time”. Further, the Master considered that the Notice of Claim procedures were consonant with that policy.

66. Master Macready in Zirkler v McKinnon [2002] NSWSC 285 (Zirkler) gave some insights as to the purposes of s 20 of the FPA, stating at [35]-[37]:

35 Section 20 (4) is directed to a situation where there is a further claim presumably under s 8 of the Act. The further claim can only be by someone who has already succeeded in persuading the court to accede to his claim either within time or with the benefit of an extension under s 16. Section 20 (2)(a) provides for service of notice on eligible persons with a warning that if an application is not made the court may disregard their interests. If it does disregard their interests there may be no estate left to satisfy subsequent claims. On the other hand if the estate is large there may be sufficient left to accommodate a late claim subject to any prejudice which might flow to the beneficiaries. One of the purposes of the section is to make all possible claimants come forward so that all claims can be dealt with at the same time. That effect is achieved in practice and results in a saving in costs.

36 The notices under s 20 which were served on the tutor and the plaintiffs in this case complied with the section and gave the appropriate warnings. The reasons advanced by the tutor indicate an acceptance of that warning but a later change of heart. The facts of this case raise the spectre of cases where one member of a family brings a claim while others hold off waiting to see if such a claim would be successful. Such a case would be unlikely to succeed under s 16.

37 The difference in the present case is that there was not a deliberate holding off but an informed and well considered decision not to proceed. In my view there is little difference and this is not a sufficient reason. Apart from other matters it would defeat the provisions of the Act which are designed to lead to finality in respect of possible claims under the Act.

67. In Coric v Grotto; Nelson v Grotto; Estate of Late FA Grotto [2007] NSWSC 1080, Bryson AJ addressed the operation of s 20 of the FPA. His Honour (without deciding the question of whether s 20(2) of the FPA exhaustively set out the considerations the discretion on which the Court’s power to disregard the interests of eligible persons is to be exercised), stated:

3 Involved in the proposed appeals is a question of law under s.20 of the Family Provision Act 1982. I do not attempt to state exhaustively what would be in issue in the proposed appeal but counsel’s submissions have shown that the issues include the operation together of subs.(1) and (2) of section 20 and the influence of the enumeration of considerations in subs.(2) on the discretion conferred by subs.(1) to disregard the interest of eligible persons. I am not speaking finally but my impression is that if subs.(2) states exhaustively the considerations on which discretion is to be exercised and carries the implication that in the absence of the factors in subs.(2) the court is to disregard the interests of the eligible persons mentioned, it would be difficult to uphold the decision under appeal. If the contrary position is fairly arguable the case is not one where summary dismissal is appropriate. There may be other issues in the proposed appeal.

68. His Honour ordered that the proceedings be removed into the Court of Appeal. ^[75] However, the construction issue stated by his Honour regarding s 20 does not appear to have been ever determined by the Court of Appeal, there being apparently no published judgement addressing the appeal. ^[76]

    75. See at [19(1)].

    76. Neither NSW Caselaw nor records any such a judgment.

2000’s – Reform proposals

69. Reform proposals of family provision law in the 1990’s and 2000’s addressed s 20 of the FPA.

70. In 1997, the Queensland Law Reform Commission in its Report to the Standing Committee of Attorneys General on Family Provision, curiously stated: ^[77]

It seems that, while some attempts are made by claimants to use the provisions of section 20 to their own advantage, the Courts have been consistent in maintaining the limited (and proper) application of the section.

77. National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision, Queensland Law Reform Commission, Miscellaneous Paper 28 (December 1997) at 74.

71. What prompted that statement and exactly what it means is, to me, unclear. If it was intended to convey that some claimants engaged in untoward use of s 20 of the FPA for advantage, such alleged use is contrary to my experience. Occasionally, judges comment on tactics by family provision litigants. One such instance involved eligible persons bringing proceedings (later discontinued) as a tactic of applying pressure upon a litigant to resolve a claim, which were the subject of adverse comment. ^[78] However, I am not aware of any purported attempts of abusing s 20 of the FPA (nor indeed of s 61 of the Succession Act). No cases were cited for this proposition by the Queensland Law Reform Commission.

    78. Cairns v Cairns [2006] NSWSC 367 at [46]-[47] per Campbell J.

72. Relevantly, the NSW LRC in its Report 110 (2005) – Uniform Succession Laws: Family Provision (May 2005) (LRC Report 110) addressed the issue of how other possible applicants should be considered in the Court’s determination of family provision claims. LRC Report 110 proposed changes to s 20 of the FPA in the form of a recommended Family Provision Bill 2004. The draft provision, namely cl 12, was essentially in the same form as s 61 of the Succession Act as enacted. ^[79]

    79. LRC Report 110 at 26.

73. The LRC Report 110 stated at [2.63]–[2.64]:

This provision, which is based on Family Provision Act 1982 (NSW) s 20, was originally introduced to deal with a decision of the New South Wales Supreme Court that the Court should take into account the deceased’s duty to all eligible persons even if they had not made an application. ^[80] This potentially meant that applicants could be denied provision if applicants with stronger claims existed, even if the people with stronger claims had not made an application. ^[81]

Clause 12 differs slightly from the current New South Wales provision in that it makes clear that the interests of existing beneficiaries (either under the will or on intestacy) must be taken into account, even if they have not made an application for family provision. ^[82]

80. Fn 95, stating “See Re Bourke [1968] 2 NSWR 453; New South Wales Law Reform Commission, Testator’s Family Maintenance and Guardianship of Infants Act 1916 (Report 28, 1977) at para 2.9.11, 2.9.12.”

81. Fn 96, stating “NSWLRC, Report 28 at para 2.9.1.”

82. Fn 97, stating “This follows the effect of the decision in Luciano v Rosenblum [1985] 2 NSWLR 65

2009 – Succession Act (Family Provision)

74. Reports produced by the National Committee for Uniform Succession Laws and endorsed by the Standing Committee of Attorneys-General in 1997 and 2004 and recommendations in LRC Report 110 were recognised as leading to the introduction of the Succession Amendment (Family Provision) Bill 2008 (NSW). ^[83]

    83. New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 September 2008 at 9882; See Bowers v Matthews at [68]-[71].

75. The Explanatory Note to the Bill stated regarding the proposed s 61 as follows:

Proposed section 61 permits the Court to disregard the interests of a person who has not made an application for a family provision order. It is based on section 20 of the 1982 Act but differs slightly from that section in that it makes it clear that the interests of existing beneficiaries (either under the will or on intestacy) must be taken into account even if they have not made an application for a family provision order.

76. On 26 June 2008, the Bill was introduced in the Legislative Council. The Second Reading Speech of the Attorney General did not address the terms of the proposed s 61. ^[84] However, on 24 September 2008, in resumed debate on the Second Reading, the Honourable John Ajaka observed that: ^[85]

Proposed section 61 clarifies that the interests of existing beneficiaries must be taken into account, even if they have not made an application for a family provision order.

84. New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 June 2008 at 9423-9424 per the Honourable John Hatzistergos.

85. New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 September 2008 at 9882.

77. On 25 September 2008, the Bill, having been received from the Legislative Council, was introduced in the Legislative Assembly. Proposal for agreement in principle of the Bill was set down as an order of the day for a future day. ^[86] That occurred on 21 October 2008. The speeches on the motion for agreement in principle did not address proposed s 61. ^[87]

    86. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 September 2008 at 10109.

    87. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 October 2008 at 10284-10288.

77. The amendments in Ch 3 of the Succession Act, which include s 61, commenced on 1 March 2009. ^[88] They apply to the estates of persons who die on or after that date. ^[89]

    88. New South Wales Government Gazette, No 38, 20 February 2009 at 1036.

    89. See Succession Act Sch 1 cl 11(1).

Construction of s 61 of the Succession Act

79. Currently, different jurisdictions have different mechanisms for addressing the notification requirements to various people who may be affected by proceedings before the Court. ^[90]

    90. I expand on this in Jurak v Latham [2023] NSWSC 1318 (Jurak) at [59]-[71].

80. There are no provisions to the precise effect of s 61 in other states and territories. The position is summarised by Professor Dal Pont, who states: ^[91]

The family provision legislation in the territories, Queensland, Tasmania and Western Australia empowers the court, on an application for provision made by a person, to treat it as having been made on behalf of all the persons entitled to make an application for provision out of the relevant estate. The object is to avoid a multiplicity of proceedings, and instead ensure that the claims of all potential applicants merge in the one hearing.

Though directed to the same object, the New South Wales Act adopts a different approach. It entitles the court, in determining an application for a family provision order, to disregard the interests of a person — other than the applicant or a beneficiary of the deceased person’s estate — who may have standing to apply, but who has made no application, if notice is served on that person concerned, or the court determines that service of notice is unnecessary, unreasonable or impracticable in the circumstances. 

Also aimed at the same object, the South Australian Act instead empowers the court, upon an application for provision, to join further claimants as parties at any time prior to the final determination of the proceedings, if it is ’just and expedient’ to do so. The latter has been described as conferring a ‘broad judicial discretion’ in terms not to be read down.

91. Dal Pont at 559 [17.16] (footnotes omitted).

Approach to construction

81. The proper construction of s 61 of the Succession Act involves looking at the text, context and purpose, but in the first instance one looks at the context. ^[92] Caselaw dealing with earlier forms of family provision legislation may provide some degree of insight as to how the question of construction may be approached, but is not conclusive of the issue. ^[93]

    92. See e.g. Interpretation Act 1987 (NSW) s 33; Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock (2023) 111 NSLWR 210; [2023] NSWCA 71 at [3], [25] per Leeming JA (Bell CJ at [1] and Kirk JA at [64] agreeing).

    93. Bowers v Matthews at [46]-[48].

82. Family provision legislation has been described by the High Court in terms as being remedial in character and to be construed “so as to give the most complete remedy which the phraseology will permit”. ^[94] That approach to construction was affirmed by Gummow and Hayne JJ in Barns, ^[95] referenced by the New South Wales Court of Appeal in Page. ^[96]

    94. Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113 at 119; [1932] HCA 1 per Rich J (Evatt and McTiernan JJ at 120 agreeing), citing In re Coal Economising Gas Company (Gover’s Case) (1875) 1 Ch D 182 at 198 per Brett LJ.

    95. At [44].

    96. See Sackville AJA at [100] and Basten JA at [18]. Barns was also recently endorsed in FGH v NOP [2023] WASCA 177 by Beech JA and Seaward J at [34] and Mullins AJA at [149].

83. However, whilst the overall purpose of the Act is remedial, that does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the relevant provision must be identified. ^[97] Self-evidently certain aspects of family provision legislation are limiting. ^[98] In particular, legislation which is beneficial to one person may impose a burden on others; in such circumstances a critical issue may be to identify how far the evident purpose or principle (remedial or otherwise) extends. ^[99] The context and purpose of family provision legislation as well as the particular formative developments that led to the current form of s 61 of the Succession Act are set out above.

    97. ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 at [29] per French CJ, Crennan, Kiefel and Keane JJ.

    98. Re Eddison; Kildair v Eddison [2022] VSC 251 per Judicial Registrar Englefield at [40].

    99. See Basten JA in Page at [19].

84. Broadly speaking, the history of family provision law discloses some legislative awakening to the need for Courts to have regard to the position both of beneficiaries and other possible applicants in considering and determining family claims of an applicant.

85. Initially, under the TFM Act, no specific legislative position regarding this was manifest. The FPA provided legislative mandate to the Court disregarding interests of non-applicant eligible persons on permissive terms.

86. I will elaborate more on the operation of s 61 below. However, at present it suffices to signal that, whilst the remedial nature of the legislation in general is undoubted, three important purposes of s 61 are evident, namely:

1. natural justice to affected or interested parties;

2. timely disposal of claims; and

3. finality of litigation. ^[100]

   100. See e.g. Zirkler at [37] per Macready AsJ.

87. Those purposes are reflected in the content of Notices of Claim, as explained below.

88. Further, whilst those purposes also underpinned s 20 of the FPA, the introduction of the Civil Procedure Act 2005 (NSW) (CPA) ^[101] and Chapter 3 of the Succession Act highlighted other purposive themes which inform the construction and application of s 61. Namely, affected parties in family provision litigation being encouraged to settle claims ^[102] and conducting claims without excessive costs or costs disproportional to the size of the estate and complexity of the dispute. ^[103]

    101. Particularly ss 56-60.

    102. Succession Act s 98(1)-(2).

    103. See New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 June 2008 at 9423-9424 per the Honourable John Hatzistergos; see also s 60 of the CPA.

89. The text of s 61 by reference to both its general function and structure and its specific parts, including how it has been construed and applied by the Court, are addressed by me under a number of subheadings immediately below.

General function and structure of s 61

90. Section 61 refers to a few different types of determinations.

91. Thus, if a required Notice of Claim has not been served, the Court may under s 61(2)(b) determine that service of the notice is unnecessary, unreasonable or impracticable which “determination” permits the Court under s 61(1) to “disregard” the interests of nonapplicant eligible persons ^[104] which in turn informs the final "determination" of the family provision application.

    104. As distinct from beneficiaries per se (see below).

92. The precise juristic nature of a s 61(2)(b) “determination” and a s 61(1) “disregard” finding need not for present purposes be deeply probed and settled. It suffices to observe that those findings or decisions may be seen as steps (ancillary or otherwise) in the overall process of reasoning which leads the Court to make a final determination of a family provision order.

93. Frequently, in contested proceedings, the Court makes no formal order or notation recording a s 61(2)(b) “determination” and a s 61(1) “disregard” finding. The fact that the Court has done so might only appear in the reasons for judgment for the final orders or merely be evident from the transcript of the hearing.

94. Conversely, in the case of formalisation of consent orders sought by the parties to be made in chambers, it is common practice for the Court to make a notation or order recording a s 61(2)(b) “determination” and a s 61(1) “disregard” finding. Such notations are not normally to be construed as being independent final orders of themselves. Rather, they are generally to be understood as a positive indication that the Court has considered those s 61 matters and resolved to act in a particular way in finally determining the family provision application.

95. Occasionally and regrettably, some cases are finalised without Notices of Claim having been served and/or mistaken information is provided to the Court leading to s 61 notations being incorrectly recorded. Such occurrences do not invalidate the outcome of the case per se. However, they do lead to blemished outcomes, justice being imperfectly administered and the risk of new litigation against the estate with increased further cost and impost upon it, [105] results which the Notice of Claim procedures are designed to avoid.

    105. See Jurak.

The interests of “a beneficiary” and “any other person”

96. Leaving aside some insubstantial differences with wording, the only change effected by s 61 of the Succession Act to the terms of s 20 of the FPA was to specifically address a distinction between beneficiaries and potential family provision applicants.

97. The change gave formal recognition to the position of beneficiaries in the Court’s consideration of determining family provision claims. I describe it as a “formal” recognition because it would be wrong to say that the Court’s former approach to the interests of beneficiaries was dismissive or indistinct. Family provision claims determined under the FPA regime did not involve the Court disregarding interests of beneficiaries.

98. However, beneficiaries' interests are not unduly weighted. Family provision legislation is given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom. ^[106] It is not confined by notions of reluctance to interfere with freedom of testation. Whilst there may be some tension between views expressed by Court of Appeal judges in the exact effect of testamentary freedom in the evaluative assessment of claims for family provision orders, ^[107] such freedom is one of the matters factored into the assessment called for by s 59. ^[108] The weight accorded to the testator’s testamentary wishes will depend upon the facts of any given case for the reasons so clearly explained by White J in Slack v Rogan. ^[109]

    106. Steinmetz v Shannon per Brereton JA at [94]-[97] and White JA at [52]-[56].

    107. Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278 (Olsen) per White JA at [76]-[77], Meagher JA at [1] and Emmett AJA at [85] agreeing.

    108. Steinmetz v Shannon per White JA at [52], [56]; Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19 per Dixon CJ; Sammut v Kleemann [2012] NSWSC 1030 (Sammut) at [140] per Hallen AsJ.

    109. (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127]. See also Sgro v Thompson [2017] NSWCA 326 per White JA at [86]-[88] and Olsen per White JA at [75]-[78].

99. Section 61 distinguishes between the interests of beneficiaries per se and nonapplicant eligible persons.

100. It is appropriate to identify what “interests” are being referred to.

101. It is generally crucial to the determination of family provision claims for the Court to make a finding or have certainty, whether by agreement of the parties or following contest, as to the provision that has been made for beneficiaries of the estate, whether pursuant to a Will or intestacy.

102. In many cases this is not a vexing issue because a grant of probate or letters of administration has been made and the position regarding entitlements of beneficiaries is clear.

103. Nonetheless, a number of family provision claims are progressed in a context in which there is some uncertainty over the beneficiaries’ entitlements arising from a “probate” dispute over which of a number of testamentary instruments of the deceased embodies the final testamentary act of the deceased or whether on intestacy arises. This uncertainty is managed by case management mechanisms such as proceeding with the probate dispute first, or concurrent hearing of both probate and family provision claims or the Court with the consent of the parties proceeding upon an assumed position as to the disposition of the deceased’s estate.

104. Ultimately, the Court proceeds to determine a family provision claim by finding (after contest or by agreement of the parties) that one or more persons or entities are or will be entitled to identifiable parts of the deceased’s property subject to completion of the process of due administration, including the outcome of the family provision claim. ^[110]

     110. Costs arising from and associated with the defence of family provision proceedings is an executorial task and expense: see e.g. O’Brien v McCormick [2005] NSWSC 619 at [28] and [57] per Campbell J; see also Andrew v Andrew (No. 3) [2013] NSWSC 286 at [45] per Hallen J.

105. The interest of beneficiaries that may not be disregarded under s 61(1) is the above-mentioned interest of a beneficiary qua beneficiary rather than as a potential family provision applicant. The distinction is important because beneficiaries who are eligible persons may be potential applicants if they consider claiming additional or altered provision to their entitlement from the deceased’s estate.

106. On the other hand, the nature of the interest of an eligible person is statutory based, being a right to seek a determination by the Court of his or her application for a family provision order, pursuant to the statutory regime. That interest confers no property right until such time (if at all) that a positive order is made under the Succession Act conferring such an interest. ^[111]

     111. See e.g. Quek v Beggs (1990) 5 BPR 11,761 at 11,781 per McLelland J; Porte v Couso (Supreme Court (NSW), McLelland J, 16 March 1992, unrep: BC9202004) at 2; Cetojevic v Cetojevic [2006] NSWSC 431 at [55] per Campbell J (all cases observing that a family provision applicant has no caveatable interest in property forming part of the estate).

107. In New South Wales, notwithstanding that the effect of a family provision order is to operate as a codicil to the deceased’s Will (s 72 of the Succession Act), the nature of a family provision order is different to a provision under a Will arising from the deceased having nominated a person as a beneficiary. The two kinds of interests spring from different sources and remain distinct, despite their similarities. ^[112]

     112. Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306 (Schultz) at 316-317 per the Court (relevantly unaffected by the fact that the case dealt with the Queensland legislation, Succession Act 1981).

Service of notice on the person concerned

108. The Court’s power to disregard the interests of non-beneficiary non-applicant eligible persons is enlivened by: service of “notice of the application… in the manner and form prescribed by the regulations or rules of court”: s 61(2)(a); or a determination under s 61(2)(b).

109. I addressed the family provision notification requirements and the consent jurisdiction in Jurak ^[113] and will below specifically focus on the service and notification requirements relevant to s 61, elaborating on some specific issues.

     113. See at [26]-[50], [116]-[132].

Meaning of “unnecessary, unreasonable or impracticable”

110. The precise origin of the wording of s 20(2)(b) of the FPA and s 61(2)(b) is unclear. It does not appear in the 1977 Report. It first appeared in the draft of the Family Provision Bill 1982 (NSW). The Honourable David Paul Landa referred to it in the Second Reading Speech in the Legislative Council. ^[114]

     114. New South Wales Legislative Council, Parliamentary Debates (Hansard), 1 December 1982 at 3600-3601.

111. It will be recalled that the wording of s 20(2)(b) FPA initially only contained the two adjectives “unreasonable or impracticable”. The third adjective “unnecessary” was added in 1985, having operation from 1986. ^[115]

     115. Ibid.

112. The adjectives “unnecessary, unreasonable or impracticable” are used to describe instances in which the Court is permitted to determine that service of a Notice of Claim is not required in the circumstances of the case and the relevant interests may be disregarded under s 61(1).

113. The precise meaning of those adjectives have not been the subject of any singular detailed analysis in family provision caselaw.

114. The plain English meaning of those words are potentially very wide in content.

115. The online edition of the Macquarie Dictionary provides that “unnecessary” means “not necessary; superfluous; needless”. “Superfluous” is, in turn, defined as “being over and above what is sufficient or required”. “Unnecessary” is contrasted to the adjective “necessary”, which means “that cannot be dispensed with”.

116. “Unreasonable” has the following relevant definitions: ^[116]

     116. Macquarie Dictionary, online ed.

1. “not reasonable; not endowed with reason”;

2. “not guided by reason or good sense”;

3. “not based on or in accordance with reason or sound judgment”; and

4. “exceeding the bounds of reason; immoderate; exorbitant”.

117. “Impracticable” means “not practicable; that cannot be put into practice with the available means”. ^[117]

     117. Ibid.

118. In Ciric v Ciric,^[118] Hallen J stated in relation to “impracticable”: ^[119]

“Impracticable” is not defined in the Act. Something is said to be “impracticable” when it is incapable, as a practical matter, to do it, or when it is extremely inconvenient, or difficult, to do it, because, for example, of the associated costs. The word is not synonymous with the word “impossible”. It directs attention to considerations of a practical, rather than a theoretical, nature arising out of the particular circumstances: Thornley v Heffernan (Supreme Court (NSW), McClelland J, 12 September 1995, unrep); Hamilton v Moir [2013] NSWSC 1200, at [35].

118. [2015] NSWSC 313 (Ciric).

119. At [39].

119. The use of the conjunction “or” in the grouping of “unnecessary, unreasonable or impracticable” in s 61(2)(b) appears to indicate that the words are not intended to form a composite expression. ^[120] However, their grouping together does admit of the possibility that their meanings may overlap to some degree.

     120. A new expression having a meaning different from that of the sum of its individual parts: Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Thomson Reuters) at [2.220], citing Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260 at [34] per Heydon J.

120. I have referred above to the historical and legislative context in which the disregarding provisions evolved and the disclosed purposes therein.

121. Precisely why the adjectives “unreasonable” and “impracticable” were initially chosen to be the two terms to ground the Court’s determination to disregard interests is unclear and elusive.

122. It seems to me likely that the choice of the word “impracticable” in the initial expression “unreasonable or impracticable” was intended to give the Court a type of decision-making flexibility which the Court had in relation to substituted service of court process in civil proceedings generally, ^[121] although directed to a different end.

     121. At the time the Family Provision Bill was introduced into Parliament, the Court had a power under the SCR Pt 9 r 10 (see now Uniform Civil Procedure Rules 2005 (NSW) r 10.14) to order substituted service where documents could not practicably be served on a person.

123. In the case of substituted service pursuant to r 10.14 of the Uniform Civil Procedure Rules 2015 (NSW) (UCPR), the Court in exercise of that power mandates a type of service other than personal service which, in the context of the case, achieves a sufficient degree of likelihood that it will bring the document to the notice of the person concerned. ^[122]

     122. See e.g. Atkinson v Crowley [2011] NSWCA 194 per Basten JA at [38] (Giles JA at [1] and Young JA at [47] agreeing).

215. Tenthly, requests to the Court for the exercise of the s 61(2)(b) power should be supported by evidence consistent with the purposes informing that power. In many cases, the evidence initially presented is not sufficiently apposite to justify a disregarding determination under s 61(2)(b). The practice of the Court (whether by the Registrar or the Succession List Judge) in such cases is to requisition by email ^[230] for the legal practitioner(s) to clarify certain matters or to consider providing additional evidence to address any lacuna in the materials or evidence relied upon.

     230. In the case of the judge sent by either the judge’s Associate or Tipstaff.

216. The “broad themes” I have mentioned above regarding the s 61(2)(b) adjectival terms “unnecessary, unreasonable or impracticable” offer some guidance to practitioners in marshalling evidence and framing of requests for the Court to consider in making final orders determining a family provision application. However, as I have noted each of the three terms have potentially wide-ranging meaning, defying exhaustive definition, and it should be remembered that the Court has a very broad scope for making an assessment as to whether it should determine to disregard the interests of a relevant person who has not been served with a Notice of Claim.

217. Eleventhly, generally speaking, the Court does not expect searchers to engage in Herculean efforts in an attempt to locate relevant persons. The following practical guidance may be noted.

218. The overriding purpose guiding the participation of parties in civil proceedings ^[231] and the specific purposes underpinning the s 61(2)(b) power are the touchstone for the consideration of parties and practitioners in providing the Court with appropriately considered and compelling evidence.

     231. See CPA s 56.

219. Mere assertions of a relevant searching party, whether it be an administrator or legal practitioner, that they have “not heard of” or “had no contact with” the relevant person for a lengthy period of time is usually insufficient to enable the Court to make appropriate orders in the matter. Rather, some positive step(s) at locating and serving a person is expected.

220. Where evidence of positive steps as to notification and service is proffered, orders are frequently finalised on the basis of that material. In some cases, even if there are some gaps, the requisition process will often guide the practitioner as to what further evidence is required by the Court. Generally, if further searches are required, the Court will either leave that to the common sense of the practitioner or may on occasion provide an indication of what further searches may be usefully undertaken including relevantly one or more of those I have outlined above.

221. If the Court seeks further material, very often little further material is required and the Court may well be satisfied with it being provided in a cost-effective form such as by solemn email assurance from the legal practitioners. ^[232]

     232. Jurak at [147].

222. Twelfthly, in cases of difficulty the Court may make particular directions as to including in some cases the publishing of notices. Ultimately, if a practitioner is in doubt as to what is required, the practitioner should approach the Court for directions.

Relevant facts

238. The deceased was born in October 1932 and died on 13 July 2023, aged 91. He left a Will dated 13 July 2021, probate of which was granted to the defendant Andres (one of the deceased’s children) on 24 October 2023. Andres is the sole named beneficiary of the estate.

239. The deceased married Dilsa Evelira Liosatos (Evelira) seemingly in the 1950s and they had three children, being the plaintiff (Dilsa Elena Liosatos), Andres, and George. The plaintiff was born in January 1958 and is now aged 67. The family lived in Panama.

240. The plaintiff’s affidavit in chief recited some perturbing evidence which, in context, I infer referenced a period of time when the plaintiff was school-aged in the 1960s, as follows: ^[233]

11 My father used to take me on trips to the nearby mountains where my father would preach. He called himself a pastor. Sometimes we had to go on a donkey. I enjoyed the trips. The people were very nice and gave us food.

12 On the trips my father used to have sexual relations with many young girls. I would estimate that they were around 13 years of age. He used many different names. Some of them fell pregnant and I remember on occasions their babies were brought to him. I saw him pay them some money and he would not see them again.

233. Affidavit, Dilsa Elena Liosatos, 6 August 2024.

241. Evelira died in March 1977. In 1979, the family (comprised of the deceased, the plaintiff, her husband (Manuel), her son, and her two siblings) moved to live in Australia. They stayed at least initially in a house owned or occupied by the deceased’s mother, Angelica.

242. In about 1988, the deceased travelled back to Panama and married Lilia Esther Amaya (Lilia), the family’s prior housekeeper. The deceased and Lilia have a child, Alberto. In about 1990, the deceased returned to Australia with Lilia. The deceased and Lilia separated at some stage, although it is not clear exactly when on the evidence.

243. The Plaintiff and her husband had two more children, Miriam and Juan, before Manuel died in June 2008.

244. The deceased left an estate which, according to the administrator’s affidavit, is now valued at approximately $513,230, comprising a property at Amalfi Crescent in Nowra (valued at $512,000) and the balance being a small amount of cash. There were no liabilities.

245. The proceedings were commenced by summons on 10 July 2024 (just within time). The Nowra property has been transferred into the defendant’s name as executor. The proceedings have resolved and the parties, as is usual, proposed consent orders to give effect to the resolution.

246. The plaintiff’s Notice of Eligible Persons (correctly) identified herself, George, Andres, Lilia and Alberto as eligible persons. The Notice stated that each of George’s, Lilia’s and Alberto’s address was “unknown”. The defendant’s administrator affidavit stated that notice of the plaintiff’s application had not been given to any of the (three) eligible persons because he was not aware of the residential addresses or whereabouts of any of them. In particular, the affidavit stated: ^[234]

I heard about 10 years ago that my brother George lives in Wagga Wagga. I have never contacted him. I do not know where he is now. I heard on the day of the deceased’s funeral that Lilia (ex-spouse) died some years ago.

234. Affidavit, Andres Cruz Liosatos, 18 September at [15].

247. Technically, Andres would also be required to be served with a Notice of Claim (both because he is a child of the deceased and the only person entitled to the distributable estate of the deceased). However, he has not been served with a Notice of Claim. That is practically explicable by the fact that whilst the rules require him to be served, ^[235] he is self-evidently cognisant of the claim and, as the person who is the sole beneficiary of the deceased’s estate, he could not achieve any better outcome by making a claim than the entitlement under the deceased’s will gives him.

     235. See SCR Schedule J – Succession Act cl 4(1).

248. At the time of the proposed settlement of the matter, the state of the evidence was that whilst three persons (Lilia, Alberto and George) had been identified as being eligible, none of them had been served.

249. The defendant’s counsel, Ms Muscat, obviously mindful of the importance of addressing service of Notices of Claim, proposed orders to note the defendant’s undertaking to the plaintiff that he would use his best endeavours to locate the other eligible persons and for each of the parties to provide further evidence to enable the requirement to give notice to be achieved. Orders to that effect were made on 19 September 2024.

250. Further to those directions, the parties have adduced four affidavits addressing the question of service, being affidavits of Elena sworn 24 October 2024, two affidavits of Neil Kevin Hartley (the defendant’s solicitor) affirmed 31 October 2024 and 6 November 2024, and an affidavit of Gary Ernest Lees (the plaintiff’s solicitor) sworn 4 November 2024.

251. Sometimes in dealing with family provision settlements, the Court is prepared to act upon statements of family members that a person who would otherwise be required to be served with a Notice of Claim, who is a “family member”, is in fact deceased rather than require a form of death certificate. The Court’s preparedness to do so depends upon the facts of each relevant case.

252. The evidence served after 19 September 2024 reveals that the assertion in Andre’s administrator affidavit that Lilia had died a number of years ago is plainly incorrect.

253. This case is a salient reminder that comments, even on apparently solemn occasions such as funerals, to the effect that someone has passed away for a number of years may be unreliable and in fact prove to be incorrect. It also exemplifies the utility of my observation above as to co-operation by parties other than the administrator assisting in verifying details and completion of search and notification requirements.

254. Relevantly, the plaintiff, notwithstanding the assertion by Andres in his administrator affidavit that he had heard at the deceased’s funeral that Lilia had died, gave in her affidavit sworn 24 October 2024 the following evidence:

6 After the Deceased and Lilia Esther Amaya separated I have not kept in touch with Lilia Esther Amaya, however on Monday 21 October, 2024 I was able to make contact with Lilia Esther Amaya at her property at 272 Brenan Street, Smithfield. A young male was outside the property next to a car parked in the street. As I walked past him he said:

“Hello Aunty’’

I believe that it was Lilia’s grandson.

I said:

“Is your grandmother home? I would like to speak to her’’.

He went inside and he came outside with Lilia Esther Amaya. I recognised her.

She said that she received “the letter from your solicitors” and had given the letter to her son Alberto to give to their solicitors.

She said:

“We don’t want anything from the estate. We don’t want to have anything to do with Andrew”.

Andrew is the name that Lillia and I used to refer to my brother Andres Cruz Liosatos.

7 Annexed marked “A” is a title search of the property 272 Brenan Street, Smithfield (lot 5 in DP 29431) that indicates that the current registered proprietor of the property are Lilia Esther Liosatos and Alberto Liosatos. I believe that Lilia referred to herself as Lilia Esther Liosatos when she separated from the deceased and after that date she was referred to as Lilia Esther Amaya. She said a short prayer and I left.

…

11 To my knowledge Alberto Liosatos is the son of Lilia Esther Liosatos. Alberto came to the deceased’s funeral. In the church at the funeral, he said “Dilsa”. I did not immediately recognise him. He said: “I am Alberto”. I recognised his voice.

255. I am satisfied by Mr Hartley’s 31 October 2024 affidavit that each of Lilia and Alberto have been formally served with a Notice of Claim and that they have not brought and do not intend to bring claims.

256. In relation to George, the plaintiff in her affidavit sworn 24 October 2024, states as follows:

9 After the deceased died on 13 July 2023 just before the funeral, I rang the neighbour of my brother George Andres Liosatos (“George”) at Wagga Wagga (a number that I had been provided by the neighbour for emergencies). George was living at Wagga Wagga at the time. The neighbour had George come to the telephone and speak with me. I said to George:

“Brother, can you sit down. I want to tell you something. Your father passed away. Do you want to come to the funeral?”

George said:

“No, I’m not interested in coming to the funeral and I’m not interested in anything from the estate, no money, nothing”.

I said:

“But you are his son. You are entitled to some money.”

He said:

“No I don’t want anything”.

10 On 6 August 2024 I received a phonecall (sic) from a person who sounded male regarding my brother George Andres Liosatos. I did not recognise his voice.

The person said:

“On behalf of your brother George, I wanted to inform you that your brother has moved. He has already gone”.

I said:

“Where?”

He said:

“It’s confidential. I can’t tell you. He doesn’t want me to disclose it”.

257. Despite the defendant’s undertaking to the plaintiff that he would use his “best endeavours” to locate the other eligible persons in respect of the estate, ^[236] it is evident from Mr Hartley’s affidavit affirmed 31 October 2024 that (in his own words) he has received “no real co-operation” from Andres (as executor and defendant in the proceedings) regarding compliance with the Court’s orders, in particular with the requirement that he make attempts to serve notice of proceedings on the eligible persons. ^[237]

     236. Registrar’s orders made on 19 September 2024.

     237. See [2].

258. The reasons for Andres’ lack of co-operation have not been detailed. Other than observing as I have above that, apart from any agreement between the parties regarding co-operation, parties have a duty to assist the Court giving effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings, ^[238] I make no specific findings regarding the reasons for Andres’ uncooperative conduct.

     238. See CPA s 56.

259. Mr Lees in his affidavit sworn 4 November 2024 stated as follows:

7 The Plaintiff is unaware of any address at Wagga at which George Andres Liosatos resided and is unaware of any current address at which George Andres Liosatos resides.

8 I am unable to search the Electoral Roll for George Andres Liosatos. The website of the electoral commission ( does not permit a search a person on the electoral roll in these circumstances. I today telephoned the Electoral Commission who confirmed that a search of a person on the electoral roll in these circumstances was not permitted.

260. In his affidavit affirmed 6 November 2024, Mr Hartley relevantly states as follows:

2 I have read and considered the affidavit of Gary Earnest Lees sworn on 4 November 2024 in these proceedings.

3 In addition to the information provided in that affidavit about the inability to conduct an electoral roll search for George Andres Liosatos, I have attempted to locate George Liosatos by reference to the following searches, with no success.

4 On 30 October I conducted an owner name search for George Andres Liosatos via Land Registry services NSW. Those searches yielded no results. The system does not produce a printable result in these circumstances, as an “error” search.

5 On 30 October 2024 I conducted a search of the surname Liosatos on the online White Pages directory. The only entry was for an A Liosatos resident at 6 Amalfi Crescent, Nowra NSW 2541. That is my client. A true copy of the results pages is annexed hereto as and marked “A”.

6 On 5 November 2024, in the presence of my client, I conducted a Facebook search for the name George Liosatos. There were 7 people by that name with Facebook accounts. 4 of them had pictures, none of which were recognised by my client the executor. Another appeared to a duplicate. 5 of them had no given address. I attach copies of snapshots of the Facebook pages, and marked “B”

7 Another person with the name George Liokatos living in Wagga Wagga was not identified as George Liosatos by my client, and had friends also with the surname Liokatos. I attach a copy of a snapshot of the Facebook search mentioned and marked “C”.

261. Whilst the respective solicitors were correct regarding a search through the NSWEC, cognisant of the CEA provisions which permit an in-person search of the Commonwealth Electoral rolls at the AEC, I requested the parties to arrange for and undertake an in person search. That was done and provided through a searcher Jacynta Falcone on behalf of a legal technology entity InfoTrack which revealed a “Nil result”.

262. In response to my requisition seeking clarification regarding aspects of the plaintiff’s evidence, Mr Lees advised, by email to my Associate, that the plaintiff has never been aware of where George was living in Wagga Wagga and did not ever have a telephone number for him directly but only a telephone number for his neighbour. Further, Mr Lees advised that the telephone call the plaintiff received on 6 August 2024 was not from George’s neighbour who had a “female-sounding voice” but from a person who “sounded male”.

Submissions

263. The plaintiff’s counsel Mr Bradford provided submissions regarding the making of an order pursuant to s 61 of the Succession Act and the defendant’s solicitor was content to rely upon those submissions.

264. Mr Bradford submitted that:

1. the evidence indicates that George does not wish to be located and indeed had gone “to the trouble with arranging for an unidentified friend to inform her that he had moved from his previous address and did not want her, or anyone else presumably, to know his current whereabouts” ^[239] and in those circumstances publishing notices in a newspaper circulating in the Wagga Wagga area, for example, would be inutile; ^[240]

2. George had been informed of the deceased’s death and of his eligibility to bring a claim (albeit not in the prescribed way) orally at a time shortly after the death and prior to the deceased’s funeral; his response at that time was emphatic to the effect that he did not wish to attend the funeral and wanted nothing from the estate and in any event he had done nothing to enforce his rights (to bring a claim) against the estate and most probably will never do so; ^[241]

3. a fair inference in the circumstances is that George had been estranged from the deceased for a considerable time prior to his death; ^[242] and

4. if George did belatedly attempt to bring a claim he would have to obtain an extension of time in circumstances where the estate is small and there are superior competing claims to contend with (citing Ciric and Bowers v Matthews). ^[243]

   239. Submissions [9].

   240. Submissions [10].

   241. Submissions [11], [13].

   242. Submissions [12].

   243. Submissions [14]-[15].

265. In the above circumstances Mr Bradford submitted that service on George of a Notice of Claim in the prescribed form is unnecessary or impracticable and can safely be dispensed with and his interests disregarded. ^[244]

     244. Submissions [16].

Determination

266. Two issues regarding notification arise.

267. The first issue relates to the evidence that I have recited above from the plaintiff about her father’s trips with her in Panama in the 1960’s and his fathering with barely teenage girls of ex-nuptial children. The evidence, if true, is alarming. This raises a difficulty that arises not infrequently in family provision cases in which there are serious allegations in the sworn evidence which forms part of the evidentiary material provided to the Court on which the Court is requested to exercise its jurisdiction pursuant to the Succession Act to make an order for provision (s 59) or to disregard interests (s 61).

268. The nature and strength of the evidence required to establish a fact depends on the nature of that fact and on the context in which it is sought to prove the fact. ^[245]  In particular, the gravity of the matters alleged are one of the matters that the Court may take into account in deciding whether it is satisfied that the matter has been proved to the appropriate standard. ^[246] The question of what factual findings the Court should make in family provision proceedings depends upon the precise relevance of the asserted fact to the proceedings. Strictly speaking, evidence that indicates that the deceased fathered ex-nuptial children is relevant to the finalisation of family provision proceedings and the exercise of the power under s 61 of the Succession Act, as children of the deceased are eligible persons ^[247] who are required to be served with a Notice of Claim. The precise circumstances in which such children were fathered, particularly if it involves alleged sexual misconduct, might in some cases bear relevance. However, even then, the appropriateness of making findings is not straightforward. ^[248]

     245. Lim v Lim [2023] NSWCA 84 at [22] per Kirk JA, Bell CJ at [1] and Griffiths AJA at [122] agreeing.

     246. Evidence Act 1995 (NSW) s 140(2)(c).

     247. See Succession Act s 57(1)(c).

     248. For example, see Page v Page [2016] NSWSC 1218 particularly at [57]-[63] per Hallen J; Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727 particularly at [184]-[187] per Pike J. But cf Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331 at [116]-[122] per Sackville AJA; Jones (A pseudonym) v Smith (A pseudonym) [2016] VSCA 178; (2016) 15 ASTLR 402 at [40] per Ferguson JA, Whelan and Kaye JJA at [1] and [87] respectively agreeing, on the point that the testator’s conduct may explain why the claimant has a particular financial need.

266. The assertion that the deceased has fathered a number of ex-nuptial children in the circumstances recited is a grave matter. I have no reason to think that the plaintiff’s evidence is fictitious and other than credible. But the evidence is untested. There is no ideal and cost-effective mechanism in these proceedings, involving an estate which though not very small, is by no means large, to adequately address the issue. I admit of the possibility that the deceased might have had a number of ex-nuptial children but I consider that it is not appropriate to make any specific finding to that effect. Even assuming the plaintiff’s evidence is true, I consider, as noted above, the identification and location of such ex-nuptial children (if still alive) would now be well-nigh impossible. I propose to proceed on the basis that that it is impracticable and unnecessary for the parties to now attempt to seek to identify and locate any such ex-nuptial children.

267. The second notification issue relates to George. The conversation that the plaintiff had with George, prior to the deceased’s funeral, went some way to addressing the purposes of Notices of Claim in that it alerted him to the fact that the deceased had passed away and that, as his son, he may have some entitlement to receive a monetary outcome by a claim on the deceased’s estate.

268. Further I am satisfied that George’s statement that he did not want anything in response to the plaintiff’s statement that “you are his son. You are entitled to some money” and his arrangement for a person to contact the plaintiff to alert her that he has moved but did not wish to have his address details disclosed, at least on one view, evinces a conscious intention by George to have no further involvement in the matter and preclude contact.

269. The submissions of Mr Bradford to my mind fairly summarise the evidence. As Mr Bradford acknowledged, ^[249] it is not necessary for me to make any particular finding regarding whether George had been estranged from the deceased for any considerable time prior to the deceased’s death.

     249. Submissions [12].

270. Largely, I accept Mr Bradford’s submissions. I find that, within the meaning of s 61(2)(b), the evidence sufficiently justifies a finding that service of a Notice of Claim on George is “impracticable” in the sense that there has been some (albeit unsuccessful) attempt to locate him with further attempts being inherently likely to be unproductive, and in any event “unnecessary” in light of the evidence. The evidence shows that at an early stage, albeit not in the prescribed form, George was substantively alerted to his potential eligibility to make a claim but rebuffed that approach and that even if he were eventually to be located and served with a Notice of Claim, he has evinced an intention that he does not want anything from the deceased’s estate. On that basis I propose to disregard George’s interests notwithstanding that he has not been formally served with a Notice of Claim.

Orders

274. In the above circumstances, I have made certain family provision orders, including the following notations, namely that the Court has pursuant to s 61(2)(b) Succession Act 2006 disregarded the interests of: (a) the deceased’s ex-nuptial children (if there be any) on the basis that, in all the circumstances of this case, service of a Notice of Claim on them is impracticable and unnecessary; and (b) George Liosatos on the basis that, in all the circumstances of this case, service of a Notice of Claim on him is unnecessary and or impracticable.

**********

Endnotes

at 69. See R 58 at para 5.65-5.69.”

Amendments

13 February 2025 - Coversheet amended

References to "order" amended to "order or notation" - [93], [212], [213]

References to "Roll" and "Rolls" amended to "roll" and "rolls" - [198], [261], fn 203

References to "Succession Act" italicised - [83], [88], [263]

[5(4)] - "enliven a s 61(2)(b) power" amended to "enliven the s 61(2)(b) power"

[91] - quotation marks inserted around the second "determination"

[98] - "However, family provision legislation" amended to "However, beneficiaries' interests are not unduly weighted. Family provision legislation..."

[106] - "a right to seek determination" amended to "a right to seek a determination"

[134] - "adjectival condition" amended to "adjectival term"

[146] - "is not nullified" amended to "are not nullified"

[156(1)] - "the questions" amended to "the question"

[157] - "The court may under s 61(2)(a) disregard..." amended to "Because the content highlights those purposes, the court may under s 61(2)(a) disregard..."

[216] - "The nature and quality of search efforts" amended to "The nature, quantity and quality of search efforts"

[253] - "assisting in completion" amended to "assisting in verifying details and completion"

[263] - "s 61 Succession Act" amended to "s 61 of the Succession Act"

13 February 2025 - [7] - "ever determined involves some judicial consideration" amended to "ever determined under the Succession Act involves some judicial consideration"

22 June 2025 - [15] - "notional estates" amended to "notional estate" and "(a concept unique to New South Wales)" amended to "(a concept in Australia unique to New South Wales)"