It is not uncommon for a person to own real and personal property not just in the state they live in, but also in other states or even other countries. Where a deceased’s persons’ assets are spread across state borders, questions arise as to the appropriate jurisdiction to commence a family provision claim.
When preparing a will, a lawyer owes a duty of care to the testator to advise them on the possibility of a family provision claim. However, as Badenach v Calvert demonstrates, this duty does not impose any obligation upon the lawyer to advise the testator of the steps which can be taken to mitigate the possibility of a family provision claim.
In NSW, under the Succession Act and pursuant to Practice Note SC Eq 7 – Family Provision, unless the court orders otherwise, all family provision claims must go through mediation before the matter can proceed to a final hearing.