Australian Family Provision Law

Australian Family Provision Law offers a fresh analysis of family provision law around Australia. It deals with one of the most highly litigated areas of succession law, one which continues to be characterised by state differences, despite the movement towards uniformity.

Increasingly, practitioners may be called on to advise on family provision claims outside their own jurisdictions. They will be aware that the legislation in each other jurisdiction varies from their own, often in subtle and unexpected ways. At the same time, superannuation death benefit disputes could give rise to parallel actions on different principles before different tribunals.  These factors, combined with case law that is characterised by judicial discretion and decisions which are fact-specific, make for a challenging area of practice.

Drawing on her background in trusts, superannuation law and deceased estates practice, author Leonie Englefield of the Victorian Bar covers the general principles as well cross-jurisdictional issues and provides a specific chapter dealing with superannuation death benefits.

Practical features to assist readers include: detailed tables of contents and cases as well as an essentials checklist for standard applications, client intake forms, court practice notes, relevant legislation and index.

Australian Family Provision Law is a useful and convenient volume for succession law practitioners, family provision mediators, and financial and estate planners as well as trustees and other advisors who find themselves involved in family provision matters.  This book provides both a practical and comprehensive coverage of the relevant law.

The content of this book is extracted from the regularly updated Thomson Reuters subscription service Australian Succession Law by Haines QC, Englefield and Harland.

Law current as at 28 February 2011.

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From: The Law Society of Tasmania
Reviewed by: Anita Brunacci

This book deals with Family Provisions within a person’s estate for all Australian jurisdictions. In Tasmania the relevant legislation is the Testator’s Family Maintenance Act 1912.

Each jurisdiction receives a well structured commentary of relevant considerations and in regard to NSW the book deals with both the old and new legislation.

Each State and Territory’s legislation is outlined and relevant provisions are replicated in full to give the reader an excellent reference point from which to work. This includes references to time limits and considerations of the Court for a successful claim.

For those who do not regularly practice in this area or who receive an enquiry which they wish to refer on the book also has precedent “client intake forms” which allows clients to begin locating required material before their first appointment and turning their mind to what sort of information they will need to know.

Having never worked in this area of law previously I found this book to be an excellent practitioner’s guide with sections devoted to the considerations to be taken into account when assessing a client’s right and / or ability to claim. A summary of the practical nature of the book can be found in its eight section headings, which are:

1. General overview of the scheme
2. Eligible Applicants
3. Relevant factors
4. Practice procedure, a step by step guide to the Court process
5. What the Estate comprises (what can be claimed against)
6. Orders which can /should be sought
7. Time limits
8. Superannuation issues

This book should be considered a must read for someone who desires a basic overview of the area to assist in understanding the legislation in any Australian jurisdiction and the underpinning considerations which are raised as to the importance of Family Provisions in Will’s and Estate Planning.

This book could also be used as a valuable resource for quick reference on time limits in each jurisdiction as, with the cultural increase of traveling and relocation the chances of needing to give advice in this area in relation to other jurisdictions is continually increasing and, along with assessing the right to claim, practitioners need to ensure the advice is given in a timely fashion so that it is still relevant to the client.

Product Reviews

• The Law Society of Tasmania, Sep 2011 [PDF 29340]