Legal Project Management Plan & Checklist
Purpose of this Guide: Use this plan when a person believes they have been left out of a Will, or received inadequate provision from an estate, and wants to make a formal claim against the estate in the NSW Supreme Court. This type of claim is called a Family Provision Application and it asks a judge to order that more money or assets be distributed from the estate to the claimant. The claim must be brought within 12 months of the date of death - missing this deadline extinguishes the right to claim. Before filing, a formal notice must be served on the executor to freeze the estate and prevent it being distributed while the claim is on foot. Verify current guidelines on the official NSW Legislation. Access services via the NSW Courts.
Jurisdiction: NSW Supreme Court - Equity Division, Family Provision List. Governed by Chapter 3 of the Succession Act 2006 (NSW). Claims proceed in 7 stages from estate freezing through mandatory mediation to final hearing before an Equity Division Judge. Forks cover out-of-time applications, notional estate claw-back claims, and mediation settlement resolution.
Use this fork when the 12-month filing deadline under section 58(2) of the Succession Act 2006 (NSW) has already passed and the plaintiff still wants to bring a family provision claim. Filing late does not automatically end the claim - the Court has a discretion to grant leave to file out of time if the plaintiff can demonstrate 'sufficient cause.' However, the threshold is high and is not satisfied by hardship alone. The plaintiff must explain every day of the delay, show the estate has not been distributed, demonstrate that the beneficiaries will suffer no unconscionable prejudice, and show a strong prima facie case on the merits. This fork documents the leave application process, the evidence required, and the key risk factors.
Use this fork when the deceased transferred assets out of their estate before death - often to defeat or reduce family provision claims - and those assets need to be clawed back into the estate for the claim to have any practical value. The Succession Act 2006 (NSW) gives the NSW Supreme Court a unique power, found nowhere else in Australia except the Australian Capital Territory, to designate transferred property as 'notional estate' and treat it as if it were still part of the deceased's estate for the purpose of making a family provision order. Common targets include real property held in joint tenancy (which passes by survivorship), superannuation binding death benefit nominations to non-estate beneficiaries, gifts of property at undervalue, and trust distributions made close to death. The transfer must generally have occurred within 3 years of death.
Use this fork when the family provision matter has settled at mediation and the agreed terms must be formally documented and implemented. A mediation settlement in a family provision matter must be implemented through two instruments: a comprehensive Deed of Release (a private contract between the parties releasing all claims) and UCPR Form 44 Consent Orders filed with the Supreme Court to formally dismiss the proceedings and (if applicable) authorise the executor to distribute the estate in accordance with the agreed terms. Neither instrument alone is sufficient - both must be executed and the Consent Orders must be sealed by the court before the executor can safely distribute. Verify current guidelines on the official NSW Legislation.
The Process at a Glance: Immediately upon intake, verify the date of death and calculate the 12-month filing deadline and the 6-month estate distribution safe harbour. Serve a section 93 Notice of Intended Claim on the executor to freeze the estate, and demand a written undertaking not to distribute without 14 days notice. Gather the plaintiff's complete financial disclosure package. Draft and file the UCPR Form 4 Summons and UCPR Form 40 Affidavit (structured under the mandatory SC Eq 7 Annexure 1 headings) via the NSW Online Registry (JusticeLink). Serve personally, attend the First Directions Hearing before the Equity Registrar, and obtain timetabling orders for the executor's affidavit. Attend mandatory mediation under Practice Note SC Eq 7. If mediation fails, prepare the Court Book, joint chronology, and written submissions for final hearing before an Equity Division Judge.
Key Legislation and Case Law: Succession Act 2006 (NSW) Chapter 3: s 57(1) (eligible persons - exhaustive categories), s 58(2) (12-month filing deadline from date of death), s 59(1) (power to make order - adequate provision test), s 60(2) (16 mandatory matters for the court), ss 75-89 Part 3.3 (Notional Estate Orders - claw-back of inter vivos transfers within 3 years of death), s 93 (LPR immunity after 6 months without notice and 3-month counter-clock). Uniform Civil Procedure Rules 2005 (NSW): UCPR Form 4 (Summons), UCPR Form 40 (Affidavit), UCPR Form 41 (Affidavit of Service), UCPR Form 44 (Consent Orders), UCPR r 6.15 (5-day service before return date), UCPR r 10.20 (6-month Summons validity). Supreme Court Practice Note SC Eq 7 (Family Provision List): Annexure 1 mandatory affidavit headings, Annexure 2 (estate assets/liabilities schedule), mandatory mediation requirement. Key cases: Singer v Berghouse (1994) 181 CLR 201 - two-stage test (inadequacy of provision then what is adequate); Vigolo v Bostin (2005) 221 CLR 191 - notional estate principles; [Nicholls v Hall [2019] NSWCA 151](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2019/151.html) - factors warranting for close personal relationship applicants.
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Family Provision Application - Plaintiff (NSW Supreme Court) matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for Wills and Estates cases, outlining the standard Contentious Litigation process. Utilize these tracking templates to manage your legal cases efficiently.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
Re Sherbourne Estate (No 2) (2005) 65 NSWLR 268 - leave to file out of time refused where the practitioner allowed the 12-month deadline to pass without adequate explanation and the estate had largely been distributed. The court emphasised that delay prejudice to beneficiaries who have received and relied on distributions weighs heavily against granting leave. The s 93 notice is the single most important protective step available and must be served immediately upon intake.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.
Nicholls v Hall [2019] NSWCA 151 - the Court of Appeal confirmed that 'close personal relationship' applicants under s 57(1)(f) must establish the 'factors warranting' secondary gateway as a threshold condition precedent. Failing to plead and prove this gateway results in summary dismissal at the jurisdictional stage. Collicoat v McMillan [1999] 3 VR 803 (VIC, persuasive) - confirmed that 'factors warranting' is a genuine threshold, not merely a description of the substantive claim.
Coordinate the collection and review of all financial documentation required for disclosure, including statements, valuations, and supporting schedules as mandated by the rules.
Conduct a thorough review of all filed materials to ensure compliance with court requirements, verify service obligations have been met, and prepare for the next procedural milestone.
Assess the strategic considerations for interim applications, prepare supporting evidence, and draft the necessary documentation for urgent or time-sensitive relief sought.
Calderbank v Calderbank [1975] 3 All ER 333 (UK, adopted in NSW) - established the 'without prejudice save as to costs' offer mechanism. Re Sherbourne Estate (NSWSC) - the court granted indemnity costs from the date of an unaccepted Calderbank offer where the plaintiff obtained a judgment exceeding the offer. The offer must be clear, specific, and genuine (not a nominal amount designed only to shift costs).
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
Lloyd v Lloyd [2020] NSWSC 1184 - the Court struck portions of the plaintiff's affidavit that failed to follow the SC Eq 7 Annexure 1 structure and contained impermissible legal submissions within the evidentiary portion. The Court also commented adversely on the lack of specific detail in the contributions and needs sections. The 19-heading structure is not optional - departure from it requires leave.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.