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Episode 105 Buy Episode

Contesting Provision: The Deeply Human World of Family Provision Claims

Law as stated: 17 November 2023 What is this? This episode was published and is accurate as at this date.
Join contested wills and estates expert and Turnbull Hill Partner Adrian Corbould as he steps in Curiosity to step David through family provision claims.
Substantive Law Substantive Law
17 November 2023
Adrian Corbould
Turnbull Hill
1 hour = 1 CPD point
How does it work?
What area(s) of law does this episode consider?Family provision claims.
Why is this topic relevant?A family provision claim is an application to the court in the circumstance that an individual believes they have been left out of a will or that they have received less than they’re entitled. They can be exceptionally complex proceedings, they can be emotive, and they can be very hard fought. The process is a crucial one and it goes to the heart of ensuring fair distribution of a deceased person’s estate.
What legislation is considered in this episode?Family Provision Act 1982 (NSW)

Succession Act 2006 (NSW) (Act)

What cases are considered in this episode?Ye v Fung (No 3) [2006] NSWSC 635

  • Michael Ye came from China to study in Australia, and he boarded with Mrs Fung, the deceased. Mrs Fung was separated but not divorced and invited Ye to live with her. Mrs Fung did not include him in her will. Ye claimed he had formed a domestic relationship with Mrs Fung which, according to the Property (Relationships) Act 1984 (NSW), entitled him to part of her estate. The judge found that he was in a domestic relationship with Mrs Fung and thus he was awarded $425,000 from the estate, and had a $22,000 debt he owed to Mrs Fung forgiven.
What are the main points?
  • Despite efforts to avoid ambiguity unexpected issues can arise when wills are contested.
  • Under the Act, individuals who believe they have been inadequately provided for in a will can apply to the court for a revision of the estate distribution.
  • These proceedings are complex and emotional; “humanistic” in Adrian’s words.
  • Adrian says that wills and estates litigation is very human because of the impact on clients’ lives and the need-based nature of the jurisdiction.
  • Broadly, the process is a safeguard to ensure equitable distribution of a deceased person’s estate.
  • Applicants must fall into specific categories to be eligible to contest a will under the Act
  • These categories include spouses, de facto partners, children, former spouses, dependents, and those in close personal relationships, among others.
  • Proving eligibility is complex and requires the airing of things like living arrangements and reliance on the deceased.
  • Claims must be made within specific time frames, with some variability across jurisdictions.
  • Notional estate provisions in New South Wales can include assets transferred out of an estate to prevent claims.
  • Compulsory mediation is designed to encourage settlements and avoid lengthy court procedures.
  • Economic considerations and the potential cost implications for the estate make settlement a pragmatic choice in many cases.
What are the practical takeaways?
  • Emotional intelligence is critical when handling emotionally charged matters like wills and contested estates.
  • Lawyers should empathise with clients but also maintain professional boundaries.
  • For new legal practitioners, it’s important to manage email communications, response times, and not get overwhelmed by instantaneous demands.
  • Maintaining a level-headed response to disputes and avoiding immediate reactions can prevent unprofessional exchanges and protect one’s career reputation.
00:00:00DT:Regular listeners to the show might remember that on the last season of Hearsay we spoke with Anne Brown about best practice in drafting wills. And Anne’s recommendation, if you don’t recall, was to avoid ambiguity by building a deep relationship with your client – really know about them, their family, and their circumstances. Inevitably though, there are going to be times when some things just aren’t thought of by the testator, someone’s forgotten, or a distribution isn’t perceived as fair.

Now, a family provision claim made under the Succession Act is an application to the court in circumstances that an individual believes that they’ve been left out of a will or that they’ve received less than they’re entitled to. They can be exceptionally complex proceedings, they can be emotional, and they can be hard-fought.

Now, the process is a crucial one, and it goes to the heart of ensuring a fair distribution of a deceased person’s estate. And our guest today is Adrian Corbould, a Partner and Accredited Specialist in wills and estates at Turnbull Hill and an expert in family provision claims and contested wills. Adrian’s in-depth knowledge and extensive experience make him the perfect guest to shed light on this often difficult legal area.

So, Adrian, thank you so much for joining me today on Hearsay!

AC:G’day, David. Thank you for inviting me.
DT:Now, before we dive into our topic for the day, tell us a little bit about how you came to be involved in this area. Were you always interested in wills and estates, or is it something that found you?
AC:My childhood dream!
DT:We all went to law school to be human rights lawyers except for you. You went to be a wills and estates lawyer!
AC:I’ve only met two people who knew from a young age what they wanted to be. As a teenager, I would see a dermatologist every few months, and he said he knew from the age of 12 that he wanted to be a dermatologist. I thought that was a very specific career goal to know. Not just the doctor, but I want to specialise in skin diseases or skin disorders. Anyway, he may have had something that prompted that. Another fellow who said he knew he wanted to be a barrister when he was 15, but I’ve not met a great many people who think that. Anyway, so, I did an accounting and a law degree, and I didn’t actually become a lawyer after I left uni. I worked for the government for three years in some kind of auditing accounting role, which I didn’t quite – it never quite gelled with me. So in my third year, I thought; “Well, I’ve got this law degree. Let’s give that a go“. So in 2001, I did the College of Law. I was living in Sydney at the time. I met my wife three years earlier, so we moved to Newcastle, which was her hometown, and I started a job as a graduate lawyer at Turnbull Hill. That was 2002, some years ago. And for the first three years, I did whatever I was told, which was personal injury. And then there was a vacancy in doing family provisions claims, which I had no idea what they were but the solicitor here was moving to England. And so I was slotted in there. That was 2005, and I’ve been doing that ever since. So it’s nearly 18 years. I’ve worked exclusively in contested estates work and have just found a natural affinity for it. So it’s one of those instances where I didn’t find it, it found me. And yeah, so coming up to nearly 20 years of doing just estate work.
DT:And what do you think drives that natural affinity? Why does it stick with you?
00:04:05AC:What I like about it is that it’s a very humanist area. So I’ve only worked in, as I’ve said, personal injury and this kind of work. But of course, being in a large – we’re in one of the larger firms in Newcastle that does personal services. So we do family law and commercial, criminal and property. And to my observation, there’s no other area I would rather do more than this. And it’s a very, as I said before, humanist in that we do change lives. If we’re acting for a claimant, a lot of the times they are exceptionally needy. It’s a needs-based jurisdiction. A claimant essentially has to show that they need funds from the estate to advance them. And we’ve had some very good results in those years where the result obtained for them has become life-changing. So people who had nothing for decades have then had the opportunity to enter the property market or even a young person who was raised never knowing their father. So raised in a single-parent household in Department of Housing and their father had nothing to do with them, leaving it all to an entity that they had no relation to, getting a result for them such that it changed their lives. So they didn’t then have to save for however ridiculously long it takes now to even get a toehold into the property market. It was – they were able to then get a deposit, get a sizeable chunk of their mortgage down and just get ahead in life, which is really what the spirit of the legislation is about. Advance people. It’s not to – just because someone may be eligible – it’s not just to give them some extra cream to their wealth. It’s really to advance people along. Doing that kind of work and some of the absolutely horrendous stories that I hear here from people is that I’ll ask them, I’ll say; “What was your growing up? What was your upbringing like?“. And everyone always says, “Normal“, because everything is normal for that individual and they want to say what their upbringing was like. And I no longer fall off my chair. I’ve heard pretty much every story there is, and there’s some absolutely dreadful stories of how people are raised. And to do something that helps – it doesn’t compensate for any of that – but it helps advance people along life’s travels to make it not as harsh. I find it a rewarding, personal area. And the people that I work with, I love working in my team. We’ve got about, at any one time, about seven or eight people in my team that I work with in a part of a much larger firm that’s got about 45 people. So that day-to-day interaction with the solicitors that I coach and mentor and work with and the other team members, I just find it quite enjoyable.
DT:Yeah, that’s such a great answer. And it is such a human part of the law. I wouldn’t say I specialised in this area by no means, but I did do a little bit of this work when I was a barrister. It was hard to avoid family provisions work in Sydney, a fairly busy part of the Supreme Court there. So I did a little bit of it. And it is a jurisdiction where important matters of factual contest are someone’s relationship with their parents or the way they live right now and their personal finances and their health and their relationship with their siblings. And these things that we regard as very personal are not only important matters of fact in dispute, but because of the way the procedural rules work are the subject of affidavit evidence very early in the piece. So it is a very human area, and I can understand why that is appealing. Now, having just said how human and how unique these matters are, it almost seems silly to ask what a typical matter looks like. But I suppose there must be some commonalities. Again, from my observation, at least from the brief time that I did some of this work, one observation I’d make about some commonalities in these matters is that the amounts of money involved can often be substantial. I think we were just talking about the value of Sydney or even New South Wales property prices. As a result a lot of estates are million dollar estates.
00:08:21AC:Yes, that’s right. So commonalities I would say is the claims are made on a deceased person’s estate. So someone has to die in order for there to be an estate, of course, and for a claim to be made. And it’s made upon the assets that deceased person owned as at their death. And 99% of the time that person died of natural causes of around an age that would not surprise most people. So the current longevity tables, people in their 80s, 90s, these are the deceased person. So most people in that age bracket have obtained a home. And just by statistically, a fair majority of those people do live in Sydney. And I don’t think you’d find someone who owns a house, a free-standing home in Sydney that’s worth less than $1 million. So if they own that house solely by themselves, by default, the minimum estate would be about $1 million. I would say on average though, when you factor in other areas of the state, which of course is this North and South and West, I would put the average at about 500, maybe five to 700 to be the average of all them. But if it’s a property in Sydney, if it’s an estate in Sydney, one to two million is not that unusual. And actually last year, I think it was Justice Meek delivered a judgment wherein he tried to define what a large estate was. Because essentially small and large means nothing. Like, what’s small? If Gina Rinehart lost a small amount of money, that might be $20 million. It’s all comparative to the baseline. And so to put a baseline on these cases, Justice Meek said, if it’s more than $5 million, that’s a larger estate. So I don’t see too many in that region of more than five. You get a few, but the majority would be around that sub million or just around the million mark. Other commonalities would be the age of claimant would generally be just by doing maths, take 20 or 30 years off the age of their deceased. So if they’re in their 80s, they would have had children in their 20s. So the average age is probably someone 55 to, so in their 50s to 60s would be the average age of claimant because they are the children. The majority of claims, about two thirds of claims are adult children.
DT:And I suppose you would see some interesting kind of generational differences there, wouldn’t you? Because you would see the average age that people had children who are passing away now in their 80s, the average age that they had children was quite a bit younger than people who…
AC:… and number of children.
DT:Well, that too. Yeah. And even the difference between someone who’s maybe in their 60s and passes away unexpectedly would have a very different family composition.
AC:Yeah. I know this is a constant source of angst between all generations, but pretty much anyone, if they’re in their 80s, it doesn’t matter what employment you had, most were able to obtain a freestanding home because they were just, you know, if they had bought their house in the 50s or 60s, it would be in the very low tens of thousands and that’s even in North Shore, Sydney. So yes, and then number of children, it’s not that unusual where there’s five children involved or seven, but to see that for someone, for a couple now to have more than three or four or five, it’s outside the norm. Two children seems to be about the average of if there’s a claimant who’s say Gen X, which is my generation, our generation, I’m going to presume, or younger for you, is one to two seem to be the standard and if three is starting to get on the outliers and you very rarely see more than that, just because of the economics of raising children, I believe.

 

DT:Now, we were just talking before the show started about who this episode is for, you know, there are experts in this field like yourself who practice in it every day, who are in Justice Hallen’s list sitting at the back of the court there in Hospital Road just about every week, and there are people who maybe don’t practice in this area at all. And I think I’d like the level of detail in our conversation today to be sort of family provisions for the outsider – the person who is doing this work from time to time maybe as part of a wills and estates practice, maybe as part of a general litigation practice, but maybe isn’t in that family provision list every week, maybe doesn’t have that depth that someone like yourself does in the field and so we’ll go a little bit beyond the basics, but we should probably cover some of them off just quickly. So what are the basics of a family provisions claim? We’ve covered some of them, someone has to die and it has to involve a contest about the provision that’s been made for that person in a will or under the rules of your test, I suppose. In what circumstances can an application be made? When is someone eligible to make a claim?
AC:So yeah, the first criteria is there has to be a deceased person. We do often get inquiries where someone will lay out all their details and then they will ask; “okay, when did the relevant person die? Oh no, they’re still alive”.
DT:You’re getting ready, I suppose.
00:13:50AC:Preparedness. So the main criteria is eligibility, so not anyone can just come along and contest someone’s will. So often people will get full of angst when this – I don’t volunteer what I do when I go to a party or a barbecue, but when eventually it’s grilled out of me and I say; “well I do contested estates”. And often people say; “you shouldn’t be able to, no one should be able to contest someone’s will, it’s their last testament, it should be respected”. And I say; “well fine, that’s good”. But it’s when it happens to you, or when it affects you, I think that’s when the coin is flipped. Then I must hastily say 97% of valid wills made are not contested, so it’s always better to create a will and make a will knowing that there’s a 97% chance it will not be contested and that’s some pretty good stats when you think about it. So one has to be have some connection to the deceased, and it’s a state-based jurisdiction, so because probate is state-based, so there’s a Supreme Court in every state of course, New South Wales, Victoria, Queensland and each of those state Supreme Courts regulate the probate which is the process of proving a last will in each state and there is legislation within each state that covers who is eligible. But there are slight variances between states which we’ll get into later. But roughly – and this is similar amongst all states – is: claimants are eligible if they are married to the deceased. So as at the date of death they were married and that can be unusual because nowadays people can be married yet separated and they don’t follow through with the act. Because of stress or cost or for whatever reason they don’t go through with the process of divorce, so someone could be married and yet be living a completely separate life and moved on to a new life of having a de facto relationship. And when one of them dies, the other, well they’re still married. So they are eligible. The other category, the next category, are de facto couples and that’s couples who are in a de facto relationship as at the date of death. And that brings its own challenges in that quite a bit of time – certainly to my observation – in a lot of cases is that relationship is disputed because as you know when someone gets married they register that marriage at birth, deaths, and marriages  – and that can’t be disputed. The only way around that is to get divorced or if someone dies. Whereas, the de facto relationship, its existence is proved by various factors. And there’s nine factors that get looked at if this is ever questioned. Such as; “did they cohabit? Did they share expenses? Did they have a sexual relationship? Did they raise children together?”. Things like that, so it’s not an automatic eligibility if one is a de facto. If someone claims that, and I’d say quite a few de facto cases the key issue is, claimant says; “I was in a de facto relationship”. And the executor defendant says; “never heard of you. No one’s heard of you”. And the claimant is put to the proof to prove that. And then ultimately it’s the judge’s role as the determiner of fact to determine whether the claimant was indeed in a de facto relationship. Next category in New South Wales is a child. So if someone is a child of a deceased person they are eligible. There are cases certainly which have run where that paternity is disputed where the claimant says; “well dad, the deceased, had a one-night stand with mum or they had a relationship that was quiet and hushed up. And I was born and I have no father on my birth certificate or there’s someone else, but mum had multiple relationships at that time and she’s assured me that it’s dad”. We’ve had a myriad of cases like that and they do crop up regularly. Often DNA evidence is the best way to put that to bed. But when that issue is raised post death it makes difficult particularly when the deceased is no longer in existence, and I’ve never done a case where a body’s been exhumed to get the evidence. Often what’s done is sibling DNA tests are done so DNA from children of the deceased who are presumed to be the actual children of the deceased and match it against the claimant. And of course there are markers within those testings which suggest if they share the same father and that can even go down to grandchildren – which we’ll get into next – but DNA does play a heavy role. But even children claims it’s not an automatic, you know, proceed to the next level just because someone says they’re a child. That fact has to be agreed with by the executor. The next category is former spouse so that’s someone who was married to the deceased and at some point they did divorce. There’s not a great many of those cases. The reason for that is generally most couples, when they separate and they divorce, they go through a property settlement and in those instances most of the time it’s a court approved property property settlement where they each get independent advice as to; “okay you get this. I get this”. The court reviews it and it’s stamped. Those ex-spouses are still eligible to contest the will, but most judges, particularly from the judgments would say; “well you were already adequately provided for at the time of your separation and divorce. I acknowledge you’re eligible but I don’t believe there’s any societal expectation or I’m certainly not going to make an order that you receive something”. I have acted for an ex-spouse – which I might talk about later, about some of the more interesting cases I’ve done – who did succeed in a case. But there’s been quite a few cases where ex-spouses have been dismissed primarily because they did have a property settlement. So that’s something that family lawyers should also take heed that just because you act for your client in divorce proceeding one should think beyond the now and consider; “well this person is mere definition of being a former spouse, they could either make a claim or an estate maybe or a claim may be brought on their estate, is there anything more I should do to at least advise them as to what they should do to shore up as much as possible a later claim being made?”. So they’re the main four categories of claimants. We move then next into people who have been past dependents on the deceased and have been members of the household. So this is the gray area for what we call stepchildren. In New South Wales there’s no defined phrase for stepchild applicants where they would be deemed eligible as if they had say lived with a deceased person for a period of time and were a member of the household. So a stepchild would be a perfect example of that; “so I moved in with stepdad when I was five. I lived with stepdad and mum until I was 18 – 13 years – for that period I was dependent on stepdad for my accommodation, living expenses, and were living in the same house”. So that’s an example of someone who would be a member of the same household and it’s not just stepchildren it could be anyone who meets that criteria.
DT:I’ve often seen where there’s a dispute about a de facto relationship, what’s often pleaded is that; “we’re in a de facto relationship. If that’s not the case, we were in a close personal relationship and living together. And if that’s not the case, then I was financially dependent on the deceased and members of the same household”.
00:22:29AC:Yeah, there’s a few safety nets. So it’s not like a claimant has to just pin their colours to the mast of; “okay, I was a de facto” and that’s it. The judge might say; “well, okay, I don’t believe you were in a de facto relationship as at the date of death. However, there’s enough there for me that you were, for at least some period, dependent member of the same household”. So there are fallback provisions for de facto so that’s why they can be curly claims. And there’s another, there was one of the more famous cases, Ye v Fung, which was a boarder. So that was a student who moved in with a elderly woman, there was no blood relation whatsoever, there was no romantic relationship whatsoever. The boarder technically just helped around the house and looked after her and after a few years she stopped charging him rent and she helped him pay his uni fees. She died with a will leaving everything to her siblings who lived overseas. The boarder made a claim saying; “well, I was dependent on her. I lived as a member of her household” and he, from memory, received a third of her estate which was pretty substantial. It was an estate of 1.5 million so he got $½ million. And then the executors appealed it and on appeal he succeeded. So that I think is a good mark for if you let people into your home and you provide for them for a decent period – this is not you know someone who’s going through a breakup moves in with you for a few weeks till they get adjusted – this is like many months, probably. I never want to say a period. I don’t really want it to be quoted back to me as a defined. Because there is no defined. But say you know 12 months would be a good start for anyone who had lived with someone. So say your best mate moves in with you and you own the house and you pay for the groceries and they don’t pay rent. It’s not impossible that in years to come, “mate” is deemed an eligible person. A lot of people aren’t aware about what rights people have if they live with them. Just like I had a friend who refused to refer to what I would – by all observations he was in a de facto relationship so they lived together, shared expenses, sexual relationship, public perception that they were a couple. But he refused to. I don’t know if he was joking but he always referred to his girlfriend as the flatmate and whether that was to get out of any obligation of things like that. But it doesn’t matter what you think it is. So it wouldn’t have mattered what he thought it was. It’s just like the analogy I use – if it has feathers and flaps and it floats on water and it’s got a beak and webbed feet. You know that’s a duck. By looking at all those considerations a judge would say; “well, that’s a duck”.  Doesn’t matter if you want to call it a rhinoceros no one’s going to believe you, it’s what the factors are. So people are living longer, that’s clear, and there’s more relationships that occur. So there can be a lot of serial monogamists who might have; “you know, I was three years with this person. Then we broke up. And then I was five years with this person”. Those persons are all people who could say; “I was dependent on x and I was a member of their household” – so could be later deemed to be eligible. This is isn’t talked about at all, socially, and even legally. I think people just go about their lives and all that gets worried about later. When I say worried about the survivors of that deceased person have to do the cleanup or are surprised to go; “oh is that what the law is? I didn’t know that at all”. So it’s only really talked about I think amongst those in the area. I do get asked questions – because I’ve just been doing it for nearly 20 years. Family and friends will put posited scenarios to me of there might be something one of their families going through, or a friend, and I’ll say; “well, yeah, you should be mindful, that person should be mindful, that the person they’re living with has these rights if they choose to act on them”. And rightly or wrongly it’s the law. It doesn’t really matter what someone thinks it should be. It’s whatever the law is. That applies to every law. So grandchildren are also eligible to claim – not by the mere fact of being a grandchild. In New South Wales if they can show they were dependent on the deceased that’s an eligibility criteria. And what does dependent mean in that circumstance? It’s not defined, of course, in the legislation. But courts are generally more favourable if the grandchild has been in what’s known as a loco parentis relationship with their grandparents. So loco parentis is the fancy latin for in the place of the parent. And if a grandchild was at least partially raised by a grandparent, that would be dependency. You don’t have to meet the criteria of being member of the household – which is a difference. So it’s grandchild, independent. So dependency could be grandma would give me fifty dollars every week and I used that to buy food or buy schoolbooks or, you know – again please don’t cite me in any case, in submissions, about that’s what it would take to succeed in a case, is that’s just what the legislation is grandchild independent. The final category in New South Wales is someone living in a close personal relationship. So these are more like someone living as a carer. So let’s say a carer lives with someone, member of the household, lived in the same house and did that job for without fee or reward. So they weren’t getting paid for it. They were doing it out of the benevolence of their heart. You don’t see many of those cases. They do crop up, but there’s not many judgments at all about that. And that’s really because I think if someone has a carer they’re generally paid. It doesn’t include if someone’s getting a carer’s pension – because that’s not a payment from the deceased. But most people who receive a carer’s pension are generally related to the deceased by one of the other categories being a spouse or a child. So in New South Wales that’s essentially the sixth criteria: married, de facto, child, ex-spouse – that grouping of member of household – and dependent and within that is dependent grandchildren, and the last one is a close personal relationship which is essentially the carers.
DT:In those six categories there’s almost an unlimited number of subcategories, isn’t there? Because there’s so many discretionary or highly factually specific tests there to apply the concept of living together, the concept of dependence, the concept of a close personal…
00:29:51AC:… so there’s another thing I didn’t mention. It all sounds very simple and very easy, but there’s just so many like “yes, but” to all of it. And so if you’re a spouse or a child you tick the box. You get to proceed to the next level. You don’t have to prove anything else. But with all other categories you have to establish what’s known as factors warranting. Why you should receive provisions. So, what is so special about your relationship? So you’re not a spouse, you’re not a child. You might be a stepchild or a nephew who lived with your uncle for years. What is so special about your ongoing relationship? So after so when you ceased being a member of the household and you parted ways, what’s so special about your ongoing relationship that would warrant that you receive something? So yeah there’s also disentitling conduct. So just because someone is eligible like a child they might have done things, they might have been rough with mum or dad, and that’s why they’re excluded and a court might say well; “yes you are a child but you’re a very violent child and there was multiple AVOs against you. Why on earth would the deceased make provision for you in those circumstances?”. So there are areas of black and white, but again as you proceed beyond that – infinite shades of gray as to how courts apply whether that person would succeed if it went to hearing. So there’s an average of 26,000 probate applications every year in New South Wales. So that’s where someone dies and there’s a will or there’s an intestacy and someone makes an application to say; “okay, I want to represent the estate”. So 26,000 of them. Of that 26,000 there’s about a thousand family provision claims where someone says; “look, I don’t dispute the validity of the will. I’m not saying that dad or mum or whoever had loss of capacity. They knew what they wanted. However, because I’m eligible, I’m one of these six categories. I was left with inadequate provision from this estate and I should receive something or more”. So there’s a thousand of them and of those thousand there’s an average of about 30 – about 30 to 50 – judgments each year and of those up to 50, 30 are actual judgments where an outcome is delivered. So, “I dismissed the plaintiff. I find an award for the plaintiff”. And the other say 20 to 15 are generally appeals or cost decisions or other ancillary cases. So that means of the thousand filings there’s about 30 that get decided. So that’d be about three percent of commenced proceedings. So of the 26,000, about 3% are contested and of the 1000 that are litigated about 3% are determined by a judge. So suggesting the other 97% settle. There’s not a great many cases that are determined by a judge on the whole. Of course the lay public see in Daily Mail or The Telegraph the sensational cases. But they are the minority. There’s not a great many that actually proceed. And the reason for that is certainty. I would say that the driver behind most resolutions is it gives the parties certainty because there’s multiple judges in the Supreme Court. There is a few who hear most of the cases, but there could be instances where on the day of listing that judge has got to do something else and so it’s open. They can open it up to pretty much any Supreme Court judge. There’s no certainty. And even if you know who the judge is there’s no certainty of knowing how they’re going to view it. Particularly when this is a discretionary instance where even if a judge finds someone eligible they have a quite a large discretion as to what award they make for that person. So resolution brings certainty. It also keeps the cost down because going to hearing that’s where the lawyers really make their money. Because you’ve got you’ve got barristers every day, you’ve got solicitors every day, there’s transcript fees, there’s court filing fees. It could go for several days’ submissions. Possibility of appeal. So it also becomes public. The judgment becomes a published judgment and for all time it’s going to be there on the internet laying out the details of someone’s life. So yeah most matters resolve but that’s I’d say that’s across the board with pretty much every type of law where there’s litigation involved.
DT:That’s true. Although in family provisions matters there are also some procedural rules which really encourage that, which maybe we’ll talk about a little bit later in the episode. I do want to go back to these categories of eligibility. I think I find this maybe one of the most interesting parts of the area especially around some of those later categories that really turn on living together. I guess if you were to try and boil down all of those categories, simplify them – perhaps oversimplify them – one thing that unites all those categories is that we describe them as natural objects of testamentary recognition. Someone who ought to be provided for by the deceased but hasn’t been sufficiently provided for. Whether that’s just by virtue of their relationship, child or spouse, or because of those factors warranting in another category. That’s kind of the unifying category if you will across all six that natural object of testamentary recognition. And that living together test, I wanted to share a story from my own practice there because you know you said there’s so many of these factors that always come with a “yes, but” or a little exception to the exception. Of course living together doesn’t mean cohabiting full-time either. There’s a lot of cases dealing with part-time cohabitation and, you know, is three days a week enough? Maybe not. Is four days a week enough? Maybe not. I had a matter a number of years ago where it was sort of a not a very archetypal matter in the sense that the deceased had died relatively young. He was in his early 60s, and he had passed away leaving some children who were in their late teens and early 20s. And a partner who claimed to be a de facto partner, or failing that in a close personal relationship, or failing that a dependent member of the household. But they both worked demanding jobs in different parts of the state that required them to maintain separate households whenever they could. They spent time together but often they spent time apart at their own homes. And so there was a real contest of whether that requirement which is required for de facto, close personal relationship, or dependent member of household, of living together was satisfied by the amount of time they spent together cohabiting between these two residences. And to demonstrate the complexity that these family provisions matters can have in terms of the evidence, we prepared, on the basis of phone records and calendar entries and things like that, a calendar for the three years they were together or something like that, recording every day of their lives essentially and which home they stayed at for that three years to establish what percentage of the time they were spending together and what percentage they were spending apart. So they can get very complicated even on something that sounds simple enough like living together or not.
00:37:09AC:Oh absolutely and we are seeing more of that. It’s not news that there’s a lot of what are referred to now as twilight separation. Is it twilight separations or silver tail separations? Where the kids of the couples stayed together for the kids? So the kids are grown up, they’ve left the house, they’ve gone through uni and they’ve left the house. And then they look at each other and go; “oh it’s just you now” and they break up. And those people either, they don’t get divorced, but they start de facto relationships with other people who are in similar situations – where they own their own property, they got it in a divorce or what have you. But they prefer their autonomy. So they like being with someone, but they also like that they’ve got their own place. And so that makes it difficult for claimants to then say; “oh no, I was Greg’s de facto for 10 years. It’s like; “okay, well where did you live?” “Oh, well, I lived in my house and he had his house but I spent four nights of the week in his house and he would spend the other three in mine”. And then sometimes we say; “okay, well, what did you tell Centrelink?”. They say; “oh what, how’s that relevant?”. Well you’ve got to disclose to Centrelink what your living arrangements are, your status, and often that can kill off claims very quickly because people have been having the benefit of a single pension. Because once you inform Centrelink that you’re in a couple, the rate I think it’s about five thousand a year less per person if you’re in a couple. So I’ve seen quite a bit and it’s one of the first tests I do if I’m acting for an estate if someone says they’re de facto and they receive Centrelink payments; “show us what you’ve told Centrelink”. And often the claims just evaporate because they don’t want to go through with revealing that. So yeah as you indicate how do you prove it? How does someone – because often they’ll just be one person; “oh all the rates were in John’s name or I didn’t go on the rates. I wasn’t on the lease”. I keep a copy of most things, but there’d be a lot of people who they get their notice from the electricity company and just pay it and delete it out of their inbox. So there’s no history. And often there are no records. People just think; “don’t keep them” and they’d have to subpoena the telephone company, the gas company, and hope that they’ve got something and remember what those companies were.
DT:And often you see from friends, family members, about the reputation of the relationship as well don’t you? Did you think of this person as their de facto spouse? Were they at the kids’ birthday parties? Were they at Christmas lunch? You know what typical events in a family’s life were they invited to participate in?
AC:Yeah even though that even though the Act is quite short. The sections within the Act – and that’s in each state, so it’s broad brushing each state – they look quite simple. You think; “oh, that must be easy”. It’s not. There are so many subtleties. And it can be a subtlety that cruel’s someone’s  case. But relationships are getting more and more, more people living longer, more unusual styles of relationship. You can have multiple de facto relationships. Back in the 60s it seemed to be if someone got pregnant within a few months they were married, whether they liked it or not. That does not happen now. And blended families seem to be the norm now. The old school 1950s nuclear family. There are fewer of those. And you see it all the time, these, in the news. Even in this past month there would have been at least three high profile separations of celebrities. I think there was Hugh Jackman and probably Twiggy Forrest and someone else. But it just seems to be people are saying, well; “look, this forever, ever marriage – being married to the same person for 60 years is a long time”. So it’s not the case where, I remember growing up in the 80s, in primary school reading the local paper and seeing the obituaries – whether I was a morbid kid, I don’t know – but you’d see “so and so, aged 55, died” and it’d be like; “oh they lived a long and good life”. And that seemed to be about the age 50s and 60s. And now with increased medical knowledge and application if you saw someone in their 50s or 60s die now you go; “my god, what? How terrible they’re so young”. It’s now mid-80s, late 80s, you know, 90s. No one really bats an eye. And yeah the relationships that can form throughout those periods open it up and that’s just family provision claims. I’m sure we definitely don’t have time to get into what I see to be the increase of validity claims where it’s about: is the will valid? Had one only this week where I think the deceased was 101 and their last will was made two months before they died. No doctor’s report. You know, the signature was basically going vertical. And the witnesses were neighbours. You know it may have been a valid will, but it’s creating suspicion. Particularly when, you know, someone who’s 100 likely has a decent size estate. And there are many cases of stories where the friendly, kindly neighbor or the person who will visit them at the aged care centre just miraculously found their way into their will. So it’s not just family provision claims in this jurisdiction. I’m only going to see that there’s more of it. Because they say there’s going to be – I think it’s 2050 – there’ll be 500,000 Australians with dementia. Or not dementia with proclivities to that. So that’s a huge number of people. Diminished capacity. If more wills are getting made by people of, you know, in the 70s, 80s, it just opens the possibility that perhaps these people have been taken advantage of. So elder abuse is becoming more. So I think we’re entering a different world with longevity and different societal appreciations for relationships. In that no longer is someone looked down upon like; “oh my god, they’re not married” or that they’re living in sin. You wouldn’t even hear of that. Whereas probably in the 70s, if an unmarried couple lived together they might have been social pariahs. But now you’d probably say; “wow, you got married at 20. My god why?”. There’s been a seismic shift in the last 50 years and the past decades as to what is morally acceptable or just generally acceptable.

 

DT:I suppose it’s a testament to the flexibility of the legislation, and the case law that’s built up around it, that it’s capable of responding to that myriad of formats of a family, or of a relationship, or of the kinds of relationships that deserve testamentary recognition.
00:44:07AC:Yeah, I grew up in a – you could call it – old-fashioned nuclear family. So my dad met my mum when I think he was 30 and she was 20, and he was born in 1937. He died several years ago. But, you know, I’ve only known a nuclear family. Whereas now that seems to be unusual. There’s not as many of them. And we get calls from stepchildren who say; “well, dad owned the farm, dad owned the house, and dad got divorced. He married someone else. She’s in her 70s. She’s got poor health. She may live another five years. Dad’s estate’s two million dollars. She has three kids of her own. And so when she dies I expect she’s going to leave it all to her three kids and nothing to me and my siblings who would have benefited from dad’s estate”. And if that claimant has never lived with stepmom, they have no right to make a claim on her future estate. Whereas in, I think in Victoria and Queensland – I’ve never looked deeply into this because it’s outside my bailiwick. I don’t generally do things outside New South Wales. They do have specific allowances for stepchildren to make claim. So again don’t quote me on that. But I think that’s something that maybe New South Wales could catch up with – or at least not catch up with – but to reflect as you say the changing flexible relationships that people live in. I can see the point of stepchildren who say; “well, why is my step sibling going to benefit from what I would have received from dad’s estate when, you know, it’s all just going to his wife and to her kids?”. I think the legislature should review that because; what’s the damage to the stepmom if she’s deceased? You know, ultimately, it’s not going to be any detriment to her if her stepchildren who have never been dependent on her make a claim on her estate. I just think it’s worth reviewing to be updated with the zeitgeist of society.
DT:Yeah, it does seem like a bit of a blind spot in what’s otherwise a fairly comprehensive set of categories of eligible applicant. But let’s talk now about some of the procedural issues. Let’s get into the procedural nitty-gritty because there’s some pretty strict time limits or I suppose pretty brief time limits for making a claim – but they are possible to extend. Can you tell us a little bit about that?
AC:In New South Wales, the law has been through a few changes. It was, historically, the Testators and Maintenance Act – it’s something like that – and then for a long time it was the Family Provision Act and it was that for several decades and the time limit was 18 months from date of death. And then the Succession Act 2006 came in. So that’s what we’re currently under. So it’s been in place for say nearly 20 years. And so from 2009 the time limit has been 12 months from date of death. So a claim must be formalised. That means commence legal proceedings if need be. It’s always open for parties to resolve claims between themselves without the need for litigation. But if it’s coming close to that 12 months and the claim hasn’t been resolved, 12 months is the time limit. That 12 months can be extended if the executor consents; so if parties are negotiating and it’s coming up to 12 months, a claimant could say; “well, look, can you extend the time limit by three to six months? Look, we’re close to resolving, we’re not quite there yet. Rather than me and kick open a big hornet’s nest of, I’ve got to file summons and then affidavits and then you’ve got to do affidavits and then compulsory mediation, how about we just agree to extend the time limit?”. If the executor consents, that’s fine. And most of the time if you’re dealing with a reasonable person they will do that because the alternative is commence legal proceedings. That 12 months is only in New South Wales. So that’s why I always hurriedly clarify that because it’s different within each state. And it can be markedly different. In most of the other states time is measured from date of grant of probate. So Queensland and Victoria is definitely from time of grant of probate. But in New South Wales, date of death. If a claim is brought outside of time – so say someone died on the first of January 2023, and the time limit would be one January 2024, and the claim was brought in March 2024, the court has the discretion to extend time beyond that 12 months. And there’s generally four criteria that the court look at in assessing that. It’s something that gets assessed at the actual hearing. So it’s very rare that a party will apply for a interim hearing or file a notice of motion to determine whether time is an issue. Because most of the time the court says; “well, for me to assess this time issue, I need to know everything about the case. I can’t just determine on time”. So it’s determined at the final hearing, most of the time. And the four criteria is one: does the plaintiff have a good case? So is it a decent case worth assessing? Two: do they have a reasonable excuse? So what’s the excuse? And sometimes that excuse might be; “well, I didn’t even know there was a time limit. I’m just a late person. My friends told me about making a claim. I didn’t even know I could make a claim”. Or it could be; “no one told me that there was a falling out between me and dad or mum for whatever reason”. And you can never presume what is the causative factor of an estrangement which again is another rabbit. The third one is: would there be any prejudice to the beneficiaries by bringing this claim? And what that generally means is, has the estate been distributed? So imagine if there was an estate of a million dollars and there’s five beneficiaries. And once that year is up the executor goes; “okay, no one’s made a claim. The beneficiaries are writing me to distribute this estate”. And they write a check for $200,000 each to these five beneficiaries. The first one pays off their mortgage. The second one blows it through the pokies and the third one does whatever they do with it. Six months later an applicant makes an out of time claim. And because the money has now left the executor’s hands – control – they would have to join those beneficiaries. Those beneficiaries would say; “well, listen buddy, that money’s gone. If you try, and even if you have the best case in the world, and a judge makes an order that I pay you 50,000. I received it after the 12 months, I received it in good faith, I spent it in good faith, and now you want me to magically bring it back. I am greatly prejudiced by your claim”. So if the estate hasn’t been distributed so say the estate was like cash that hasn’t left the trust account or its property that hasn’t been sold, any potential beneficiaries won’t be prejudiced, in that they won’t be out of pocket if a claim is brought against them. They’ve yet to receive their benefit. So that’s one example. And the final one is: has there been any unconscionable conduct by any party? So if an executor may have been a bit sneaky about a few things they might have been asked, you know, when did dad die? Or did he have a will? And the executor might lie to them and say, “oh no, dad didn’t have a will” or “he had a will and left it all to a charity”, or who knows what. There might have been some dodgy property transactions prior to death such that the claimant thinks; “oh, well, you’ve told me dad had no money. I’m not gonna bother”. And then they find out that a few months before death that dad had transferred all these properties to various people to either evade anyone making a claim or they might have been pressured into doing some property transfers taken advantage of. So it’s not just because someone is out of time, does not automatically mean they cannot make a claim. But there are a few criteria that will be reviewed before a judge says that their claim can proceed but that’s generally determined at the hearing. So that means there’s always opportunities for the parties to settle before that happens.
DT:One of those other issues that often comes up at the time of filing other than time and and in fact time can influence this, as you said, because the way that dates are reckoned is different in different states, is where to file. Because where property is split across different states, the powers of a particular court to make orders in relation to property that’s outside of the state – it can be different, right?
00:53:12AC:Oh absolutely. Particularly New South Wales. So out of the various states and territories within Australia, we’re the only one that has powers for the court to determine what’s known as notional estate. So estates are generally the assets held – or within a deceased person’s control – as at the date of death. So there’s x dollars in my bank account when I die. There’s property. There’s a house in my name when I die. That’s my estate. Now in New South Wales, if you can show or prove that prior to the deceased’s death they conducted themselves in a way to move that property away from themselves or conduct a transaction to benefit someone else such as sell property, give cash. In New South Wales, superannuation can be brought – which does not form part of someone’s estate. It can be considered as part of their estate for the purpose of these claims because it’s any asset that the deceased had the ability in the minutes or hours before their death to nominate where it would go. So superannuation; you can make a nomination as to where it goes. Property, you can on the day before your death, you could transfer to someone else. Or a joint account, you could sever that joint tenancy, or a joint property. And this is something for estate planners to consider – I don’t do estate planning, there’s more than enough for me to do doing contested estates. Often the advice people get – this is from their neighbors – is if you die with nothing then there’s nothing for anyone to claim. But that would be true if they spent it all and there was no trace. But if they gifted away or transfer it for a dollar to one of their other kids. I have seen this done in cases that I’ve run. Where mum is aware that; “oh John’s going to make a claim” and their sister says, “well you’ve never liked John, you’ve got to transfer your house to me and that way he won’t be able to claim on it”. Yes, that can work. And I’ve seen it work twice where the property’s been transferred to a daughter’s name and say 10 years has passed. In New South Wales the time limit before death is up to three years. So if a transaction occurred within one year prior to death, the claimant doesn’t have to prove what was the intent of the testator in doing that transaction. They’ve just got to establish that transaction.
DT:That it was transferred.
AC:Yeah, and notional estate’s not automatic. Generally a court will only consider notionally bringing these estates in if there’s insufficient aspects within the estate proper to make provision to the claimant. So if it’s more than 12 months before, but no less than three years – so if it’s done more than three years – it’s like you can’t claim it. If it’s more than 12 months but less than three years you have to prove that the intent was to limit a claimant trying to make a claim. So there was an awareness that someone’s going to make a claim and they have moved assets away from themselves in an attempt to mitigate or reduce the chance of someone making a claim on their estate. But that’s only New South Wales and often people outside of New South Wales are shocked this can happen. But it’s anti-avoidance legislation, basically.
DT:You know, coming from a corporate background myself it sounds a lot like unfair preferences in corporate matters or creditor to defeating dispositions, I suppose,  where you have transfers of property not for value out of a corporate structure with the intent to preserve them in the hands of the beneficial owners or move them somewhere else for some phoenix activity. You know, those can be clawed back and I suppose it’s the same sort of thing. We’ve alluded a couple of times in the episode now to some of the procedural features of family provision claims that really promote settlement and one of those is compulsory mediation. Talk me through the point at which in the proceedings mediation has to take place and maybe we can talk a little bit about why so many matters settle at that compulsory mediation.
00:57:23AC:The first thing everyone really tells me, whether that’s a claimant or an executor, is: “I want it resolved as soon as possible”. Now my experience is people don’t want to give up money unnecessarily. So beneficiaries generally don’t like giving money away to claimants. They do it because they feel that if they don’t and this claim goes on longer, they might be in a worse position. And I’ve tried to entertain it to lawyers who talk about collaborative contested estates work saying; “oh, before you die if you think there’s going to be a dispute, have a meeting with all your family members – all the people who could be affected and try and work it out there”. Now I only hear the bad stories. People don’t ring me up and say; “oh, by the way before mum died we had a meeting. And we agreed this, and I took five percent of her estate, and my brother got 95 percent of the estate, and I’m happy with that and we’ve moved on with our lives”. Generally I don’t get those calls. I like the idea of it, that people do it, but i’m not sure if the living would be content with that. So say I’m one of three – which I am – and if my mum said to me, “darling, I love you all equally, however, I’ve decided to give all my money to the church of x. I want you to respect my wishes. And I want you to sign this deed now saying that you won’t contest my will”. Some people might say; “that’s fantastic, I completely respect your wishes”, but I don’t know how successful that is. And then after death when claimants and defendants and executives say; “I want this resolved as soon as possible”, it’s a pretty much similar position in that the executors will say; “claimant, you don’t have a claim”. Claimant says; “yes I do”. How is that meant to settle early? What has to generally be done is the claimant has to be very full and frank with their circumstances, and that in their history – and it generally is some history – it’s generally some reason why they were left what they were or excluded. And all that has to be ventilated. And I think it’s incumbent on the executor. An executor’s role essentially is number one, uphold the terms of the will. So their job is: the will says this; I should do all things to make those terms happen. However, they have the power to compromise on those terms if it’s in the interests of the estate. So they can make decisions that affect the beneficiaries. If they think well this person has a right to make a claim, they’re eligible. They’ve shown their need. They’ve convinced me that they should get something, because, if I don’t settle with them they could commence proceedings, we have this huge court case that’ll go for a year and cost the estate many dollars and I can’t give the beneficiaries certainty as to what that outcome is going to be. So for it to get to mediation, generally all the work that is needed to be done in a court case has to be met. And just as I think it would be negligent for someone acting for a claimant to recommend that they settle without knowing the full story of the estate. So a claimant might say to an executor; “can you tell me what the estate is worth?”, and they’ll stay silenced, or “none of your business”. Which means the only way you’re going to compel them to volunteer that, is by commencing legal proceedings. And then they have a court order that they must disclose this information. So I’m unaware that a great many cases resolve amicably without legal proceedings being started, because I don’t think there’s the requisite – I won’t say fear – maybe concern by the interested parties that either all the information is present or that well if i’m an executor I could just ignore them and wait for the clock to run out the 12 months, and they may not make a claim and therefore we’re free and clear. The court has set up a system, and it’s been in place for as long as I’ve been doing it, where after the is party served their evidence, which is the claimant’s affidavit which sets out their relationship with the deceased and what their financial circumstances are and why they need provision from the estate. And the defendant has done their affidavit, saying; “well I have probate of this will so I have standing to actually talk to you and make decisions,” – because sometimes there is no probate and the status of the will is uncertain – “I can make decisions on behalf of the beneficiaries”. Generally, we always recommend an executor get the consent of beneficiaries to make any resolutions or they be, in the very least, consulted that a claim has been made. So once that criteria has been met, evidence is in the list. Judge will order the matter for the parties to attend compulsory mediation. And I was going to chime in about half an hour in that, Justice Hallen retired in July of this year. So now Justice Meek is the succession list judge. Justice Hallen used to have a format where if the estate was less than 500,000 he would have a judicial settlement conference where he’d actually call the parties into his courtroom and basically give a pep talk to the parties to say; “well, look if you don’t settle it today you might be in front of me or another judge in six months time and the costs are going to be double what they are now”. If it was between 500 and a million, court annexed mediation – which doesn’t cost the parties anything. They have a court registrar act as the mediator. And if it was more than a million dollars, order it to private mediation where the parties would hire their own rooms, they’d engage a private mediator who was experienced in determining these, and run it that way. Now the approach is all matters have court annexed mediation unless they can come to some prior agreement. Which if it’s a small estate they can have what’s known as a chambers conference – so small, again, it is say in the low hundreds of thousands – and you’ve got experienced practitioners, so solicitors and barristers, the court can say; “well, you can have a chambers conference where you basically call each other from each other’s barristers’ rooms and try and come to agreement”. Or there’s court annexed mediation, where in the old Supreme Court building – which is corner of Phillips Street and King in Sydney – the parties formally attend, everyone shows up, there’s a registrar who is the mediator and it goes through the process. That takes about three hours. And for the bigger ones a private mediation. And I have to say easily 90% of matters resolve at mediation. Because they are reminded by the mediators why they’re here. It gives certainty. It keeps the costs down, it keeps it out of the public eye, all those things. And people also want finality. And even after mediation, often tempers are raw at mediation because it’s the first time that the parties have physically seen each other for years and there might be a lot of bad blood and that may stymie negotiations, but after that day and the cortisol levels drop, negotiations always continue. The court is constantly at the parties to negotiate and that’s I think all jurisdictions. Because you can imagine if there are a 1000 filings per year how could the court possibly hear anywhere near that number? So the courts are constantly pushing. And the practitioners, if they’re doing their job, encouraging parties to settle. Not blowing too much smoke up the client to say; “look, yep see them in court. If they don’t agree to this you will definitely get this outcome”. I don’t think that’s a good advice. Because there’s no such thing as a sure thing. You might have an excellent set of facts that we would suggest; “okay you will receive an award because you are a spouse or a child and you’ve got no money, and it’s a big estate”. But if the practitioners know their stuff, if they make offers – so formal offers, Calderbank offers, offers of compromise – that are good offers, then those parties have to really think deeply about; “if I reject this and run it to hearing, I might be up for not only my own costs but the other side’s costs”. So just like any jurisdiction, it’s not a fire and forget. You know, file your summons, see you in court. Just things can happen that can encourage, or at least disincentivise, parties from taking it to hearing because of cost consequences. And there’ve been plenty of cases where they’ll have a judgment and they’ll have case number two where there’ll be a cost decision. And at that judgment all these offers of compromise will come out and say; “well, the defendant offered the plaintiff a hundred thousand dollars early on in the pieces. I’ve awarded them 80. So they put all the parties to the cost of running this to a hearing. I’m going to order that they pay the defendant’s costs from that date of offer”. Which could be 80 grand, so they get nothing. So lawyers also have that role of those who work in the area. So generally barristers spend more time in court – well, they definitely spend more time in court than solicitors. So that’s why at mediation, parties pretty much always brief equity barristers who have an experience of quantum, and know the cases too so they can advise the clients to say; “well, if you went to hearing, if you got this judge, this is the range. The offer that’s been made to you is within the range. I recommend you accept it or negotiate a bit more within that range but don’t expect if this goes to hearing that you’re going to get some huge amount beyond that”. So lawyers do have an obligation and responsibility to temper their clients’ expectations based on, and keep up to date with, what the judgments are. Because they are constantly changing. You could rely on a case from 30 years ago and say; “well, yes that was good law back then” – so I saw one this morning where grandchildren were awarded 20% each of an estate. Whereas decades ago a judge might have said; “no way, forget it”. So that’s why it’s not an area to dabble in. You should be confident in what you’re advising because there can be consequences. So no client’s going to thank you for taking a matter to hearing, getting an award in their favour, and then getting another judgment that says; “well, you were offered more than that and now all that amount, you’ve got to pay this back. And possibly depending on the cost terms with your lawyer, pay them as well”. So it’s very constantly fluid, you got to review things at all times, jurisdiction. Your question was mediation. The courts are constantly pushing parties to settle. And I think it’s incumbent on lawyers, barristers to encourage that as well. If a client’s gung-ho and says; “I don’t care what they offer me, I want to punish them” which we’ve had. I’ve had clients who have said that. And we’ve ceased acting where they said; “I don’t care what the result is, as long as she gets less”. I’m not going to go down with you. Well one, that would be an abuse of court process. But that’s not the intent or the spirit of this. So you need to find someone else if that’s what you want to do. A lot of people are very angry and just want to be heard. You know, I read all the time about AI taking over law, I see that it has some benefit in drafting documents. But in these humanist areas a lot of people just really want to be heard and have someone to talk to, and someone listen to them, and understand why things are. Whereas I don’t think computer programs, or chat bots, are at that level yet that would make someone come to a decision based on what feedback they’ve received from AI. You’ve got to have quite a bit of EQ to last at this beyond a few weeks or months.
DT:Yeah, absolutely. Look, I think we know a little bit about legal AI at Lext and have said a few times that my view – my strong view – is that AI is what we call a differential multiplier. It’s very good at improving the efficiency of people who know what they’re doing in the domain, but not very useful at all to people who really don’t know what they’re doing and can’t tell the difference between something that’s true and something that’s not. But yeah, I strongly believe it’s a differential multiplier – great for improving the efficiency of experts like yourself, maybe not a replacement for experts like us.
01:10:19AC:I would never dare dabble in family law or, you know, if you ask me to do a commercial lease and they said; “oh, there’s this AI tool that can help you”. And I said; “well, that might be the case but I don’t want LawCover asking me later, like what was your experience in this? And did you know that AI did not cover these things?”. As you say, great differential tool if you already know it might draft you a great starting affidavit that puts everything in its right place and say; “okay, good you’ve saved me an hour”.
DT:Absolutely. Now, just returning to, you know, the prevalence of successful settlements in mediation. I think there’s also an economic element in that, you know, we’ve spent a lot of time talking about eligibility and the interesting eligibility questions that can arise. But most claims tend to be brought by children of the deceased. And in those circumstances, unless there is some disentitling conduct, or they’ve been handsomely provided for in the will already, it’s likely that there’s going to be an award of some proportion. That there’s a good prospect of that plaintiff being awarded something. And in the absence of those sorts of Calderbank if they’re successful in their claim then the estate is going to be bearing the costs of both parties, and often it just makes sense for the estate in those circumstances to save the estate some money by making an offer. Because otherwise it’s the estate that’s going to be paying not only whatever the plaintiff ekes out at a final hearing, even if it’s lower than the offer that they’ve made, but also the estate’s cost of defending the application and the plaintiff’s cost of making it.
AC:We often get instructions from defendants who say; “make them no offer at all. Let it run to hearing”. Which, that’s the instruction. We could, theoretically, do that. And you’d say; “okay, they are a child. They’re not living at Double Bay with two Maseratis in the driveway, and in a beach front house. They’re Aussie battlers. Yes, I understand that they didn’t go to mum’s 60th birthday, or what have you. And there was a falling out, but you know this could go to hearing, and executor-defendant you’re also responsible to the beneficiaries”. So yes you might get a bit of a pyrrhic victory in that you might have had your day in court and you’ll be able to stand proudly and say; “well that’s what mum or what the deceased wanted”. But if the costs are then in the,  you know, I don’t want to put figures to things, but sizable. And then an award is made to the plaintiff, you know, no beneficiary I think is going to defend the principle of the matter. But I wouldn’t say just because someone’s eligible that’s a free kick. So if they’re a very wealthy child and they can’t really establish need. Because it is a needs-space jurisdiction. If they say; “I’ve got 10 investment properties, and they’re all paid off, and you know I’m retired and I’ve got a great super coming in and it’s really just, you know, I feel left out and angry”. It may be put on a very low offer of compromise, Calderbank, to say; “okay, well if you’re serious about this, and it goes to court and you lose, we’ll be seeking a cost order against you and it’ll be in this kind of range”. Are your principles that powerful that you want to risk it? Yeah there are instances where the advice to an executor is; “if you pay them something they might go away”. Again, it’s a case-by-case basis. No one could say that applies to all cases and then that the claimant may not accept that offer, and they may have to proceed further. So I understand the passions that people feel about, you know, you shouldn’t be able to contest a will. But from experience no one has said that to me who has been excluded from one of their parents’ wills.
DT:Yeah, that’s very true.
AC:Until it happens to you I think it’s difficult to give a dispassionate view on things.
01:13:46DT:Speaking of taking a dispassionate view, these are matters where there can be a great deal of personal angst where either plaintiffs or defendants can be motivated by animus by emotion more than by cold rational financial logic. What’s the role of the solicitor in those matters, I suppose, especially around settlement negotiations in taking some of that emotion out of the matter? Or is it the other way? Do you lean into some of those feelings, try to understand them a little bit better, and use those motivators as a way to bring the matter to a settlement?
AC:Yeah, that’s a really good question, David. So as I indicated before it’s very good to have a good EQ – emotional quotient, that’s what it means – in having empathy with clients and also having empathy for, you know, if you’re a defendant-executor having empathy for the opposing side and vice versa. Seeing it from everyone’s view. And occasionally of the solicitors who work with me they will be; “you know, this case is really getting to me. The emotions of the people involved are getting to me”. I have to remind them – and whether that’s because I’ve been lawyering for 20 years I don’t know – but I have to remind them; “it’s not your case”. Just as I say to my clients, I’ve never had to contest a will in my life, personally. You know, my dad died. He left his estate to my mum. Just because I wasn’t included in my dad’s will that did not mean that I’m going to contest. I’m expecting to benefit from my mother’s estate, hopefully, or whatever she wishes to do. So I can’t put myself in that position to say; “look I’ve been through what you’ve been through. I’ve certainly channeled, I’ve certainly guided, the cause for thousand plus people in doing what you’ve done. But I can’t say I can relate directly”. And that’s what I say to the lawyers who have worked with me to say; “look, someone’s chartered your boat, you’re the captain on the boat, you tell them these are options of where you can go. They tell you where to go, and you take them”. So it’s having a balance of being able to identify and empathise with the emotions but not absorb it so you’re  carrying it with you. And how does one do that? I think it’s experience, the more you do. And to help you go to sleep at night to say; “well, I advised them the best I could, I gave them a list of options, I indicated as best I could what the likely outcome of those options are and they made the decision. I personally did not make the decision. I may have made recommendations”. But I think that helps a practitioner sleep at night to say; “well, it’s not my case. I’m helping them through it but ultimately it’s not my case”.
DT:That’s good advice for handling this area or any area that’s affected by that sort of emotional charge. And you know that’s probably generalisable to a lot of areas of practice – even corporate advisory work can be affected by, you know, emotional charge. The, you know, relationships between former co-founders can be very emotionally charged. And so I think that’s also probably good advice to leave with our younger listeners, our young lawyers and law students listening to this episode, who might want to work in an area like family provision like contested wills and estates to have that toolkit to take with them. That you don’t take on that trauma or you don’t take on the emotional challenges of matters with you. You do have to maintain that distance. And I like that analogy of the charter boat. You know, your role is to take them where they want to go.
01:17:29AC:I just like using analogies. And as I say to clients; “you will never be in this jurisdiction again, this is a one-off, and I don’t expect you to know what it’s going to be like”. You may have never seen inside of a courtroom at all. So I like to give imagery to help them get through it. One thing I would quickly add for new graduates is just from my own experiences. When I started 20 years ago a lot of communication, correspondence, was snail mail and the pace was a lot more measured than what it was than what it is now. So email was – of course, it existed – but it was in its infancy. It didn’t have the monopoly on communication as it does now. Back then, it was – a letter would come in, and that letter was dated seven days ago. And you would read it and you’d dictate a response, and you would post that to your client. And that would take seven days to get there. Whereas now is everyone’s firing emails non-stop and “oh, I’ve forgotten to add this PDF, add that on. I forgot to add this. Another one”. And so I’ve no doubt when I go back to my inbox there’ll be another 30 emails. Which, of course, I approach in as best zen-like state as I can. But I think new grads coming in think that, and that will be, the norm for them. They’ll think that this is normal. It’s not. So they don’t go mad, and go crazy and overstressed: is just because an email comes in at 11:01 you don’t have to reply at 11:02. Because doing so you may have interrupted other work you’re doing. And if you send it at 11:02 the recipient may call you, not read it, but then call you at 11:04 asking to talk about that. And you’ve just made a rod for your own back. When did they need to know? Did you have to reply within that minute? Would anything, a major consequence, have happened? Probably not. So I think the grads need to do things for their own mental health, because you hear about burnout all the time. It’s in the news and the articles all the time about young lawyers burning out. And I think they need to – and that’s also a role of their managers to help them – to, just take a moment, does this need to be acted on right now? Because, historically, you got time. My wife told me, that’s why doctors refuse to give up fax machines. Because it adds a bit of a break. If people were able to email they just be constant; “I saw on google that I’ve got this and that”. And I think we’ve got to occasionally just stop, check the weather, for how are things operating? Is this sustainable? And other things that I can do, that doesn’t materially affect the level of service or the outcome but just work in a way that respects the mental health and ability of your clients, your colleagues, other lawyers. Not sending the Friday five o’clock burner to an opposing side saying; “here’s an offer that expires at 10 a.m Monday”. Things like that, you know. Just be mindful. Be empathetic of not only your clients, but of yourself, your colleagues, and lawyers and the court everyone.
DT:And I think not just for burnout but also you know the slower pace of correspondence helped to keep responses a little more level-headed. I think…
AC:And measured. Yes, absolutely.
DT:I think the ability to respond immediately – and I’ve certainly been guilty of this earlier in my career – has meant that you get a little upset about a response that you’ve received and you fire one back. And maybe with another hour to think about it, you wish you really hadn’t sent that, because you look like an idiot and you’ve taken things very personally. I remember being… sounds so silly now. I remember going to a directions hearing when I was a very new lawyer and the other side wrote to our team afterwards accusing me of being late to the hearing. And I wasn’t, we just couldn’t find each other. Anyway I got very upset about it and I wanted to send back an email saying how outrageous it was that I’d been accused of being late. Fortunately, I had a very wise supervisor at the time who said; “just wait, don’t send anything. You’ll feel a bit silly about that in an hour”. And I did feel very silly about it in an hour. But I think we often get ourselves into trouble professionally, and maybe even ethically, when we’re sending those sorts of responses in the heat of the moment. A bit of emotional impetus behind them not really thinking about why we’re doing it.
01:21:53AC:Yeah, just wait. As I tell everyone, if you’ve received something in anger, wait till the next day to respond. No one’s going to benefit and it’ll only really amplify a fight that’s probably not even relevant. I describe it as one of Aesop’s fables: the Reed and the Oak. The oak, you know, withstands everything and battles everything, and ultimately just gets knocked over. Whereas the reed, just take it, let it wash off you. It’s probably, they’re having a bad day, the lawyers’ having a bad day. They could have had a fight with their spouse and they want to take it on someone else. If it’s not going to damage the quality of work or the case, I think sometimes it’s easier just to – not wear it – but let it brush past. If they go low, you go high. So yeah it’s don’t take it personally, which is very easy to say when you’re not the one receiving it, but I think it’s probably got more to do with the other person than it does for the recipient.
DT:Yeah absolutely. Well, some great tips there on keeping a level head in a very emotionally charged jurisdiction. So Adrian Cobould thank you so much for joining me today on Hearsay.
AC:Thanks David, it’s been wonderful.
01:23:11RD:As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank today’s guest, Adrian, for being a part of it.

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