Urgent need for provision out of a Deceased Estate | A Guide to Section 62 of the Succession Act 2006 (NSW)

Key Points

  • Some circumstances may mean an application needs to be made for an advance or interim provision of a deceased estate.
  • The person may have urgent needs that they require provision for before their substantive family provision claim is finalised.
  • The Court has recently set out considerations for when an interim provision order should be made.

Interim provision orders

Section 62 of the Succession Act 2006 (NSW) empowers the Court to make an interim provision order for a person before it has fully considered their application for a family provision order. A person must have an application for family provision on foot and establish that they have an urgent need for immediate provision whilst the substantive application is being considered. 

Considerations when making an interim provision order

Justice Meek of the Supreme Court of NSW recently set out the relevant principles or considerations that a Court must take into account when making an interim provision order in Byrd v Margiotta [2023] NSWSC 1556. These principles include:

  • the person making the application has the onus to prove that an interim order should be made;
  • generally, it should not be in dispute between the parties that the person making the application is an eligible person;
  • the person making the application must be able to show that their case for further provision is more than arguable;
  • the Court must be satisfied after considering the evidence that, on the balance of probabilities, no less provision will be made to the person making the application in the final provision than what is proposed by way of interim provision;
  • the Court does not need to determine the precise final order for provision to determine that the person making the application will receive no less on a final basis but only needs to determine this matter generally;
  • the Court has the discretion to make an interim provision order, that is, even if the person making the application satisfies all the criteria, the Court is not required to make the interim provision;
  • it can be relevant whether the person making the application could pay back an interim lump sum order if the interim provision order was later revoked at the final determination but the Court can still make interim provision to a impecunious person; and
  • the interim provision order takes effect as a codicil (amendment to the Will) under section 72 of the Succession Act 2006 (NSW)

Procedure to obtain interim provision order

Usually, a person making an application for an interim provision order would attempt to reach an agreement with the estate (the executor/administrator or person appointed to defend the family provision claim). These negotiations would usually be through the applicant’s solicitors and the estate’s solicitors. If the parties cannot reach any agreement, then the applicant would need to apply to the Court under section 62 of the Succession Act 2006 (NSW) for an interim provision order.

Summing it up

An application for an interim provision order can be a complex and costly process.  Because it can become a further contested application before the Court, the application can significantly increase the costs of the overall dispute. Further, there can be technical or strategic reasons for making the application or not making the application that may have an effect on the final result of the overall proceedings. It is important that you get advice on any interim provision from lawyers with experience.

Our experienced estate dispute solicitors can advise you as an eligible person or executor/administrator of the estate on your rights to make or defend an application for an interim provision order. Contact our team today.

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No part of these notes can be regarded as legal advice. Although all care has been taken in preparing all notes, readers must not alter their position or refrain from doing so in reliance on any of these notes. Stephen Wawn & Associates do not accept or undertake any duty of care to readers relating to any of these notes. All inquiries should be directed to Stephen Wawn & Associates.