Using preliminary discovery for family provision claims

Posted on June 28th, 2017

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Disputes between siblings after the death of a parent are common.  A typical basis for a dispute is an allegation that one child has helped themselves to their parent’s money in the parent’s lifetime.

On the death of a parent, accessing documentation to take the other sibling to task is difficult.   Often the sibling has no legal authority to ask for information .  In Viljoen v Hayes [2017] NSWSC 801 a sister requested copies of bank statements belonging to her deceased father for the purpose of finding out what had happened to the proceeds of sale of her father’s property in his lifetime.  The brother declined to produce copies. 

The Plaintiff made application to the Supreme Court for orders that the documents be produced.  She failed to obtain the orders she sought.  However, the decision of the Court is useful because it provides an analysis of situations when the Court will assist the production of documents.

In particular, the case provides a useful analysis of preliminary discovery in family provision cases. In essence, if sufficient information is put before the Court to satisfy the Court that the Plaintiff is eligible to make a claim, then the Court may consider making orders.

 

Felicity Wardhaugh, Special Counsel at Mullane & Lindsay Solicitors, NewcastleFelicity Wardhaugh is Special Counsel at Mullane & Lindsay Solicitors and practises extensively in  Wills and estate planning, Commercial dispute resolution and other litigation.  If you require any assistance in these areas please contact Felicity Wardhaugh to arrange a consultation or contact our Newcastle office. 

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