Savings vs Fallout – Self-Representing in Estate Matters

We have previously posted several times about family provision claims.

In a nutshell, this is the most conventional way to “contest a will” in NSW. A successful family provision claim has the effect of “re-writing” the Will, and redistributing the assets of the estate to different people in different shares. While some people have strong views about not challenging the last wishes of the deceased, before taking a negative view, bear in mind that we do too. However, in appropriate circumstances, such as where the executor / trustee is wasting the estate on themselves, or where a greedy family member has tricked a vulnerable elderly person into changing their Will in their favour, we will take on a case. Most of our cases in this area involve the latter-type situation, and particularly where the person left out made substantial contributions to the assets, such as renovations and improvements to the family home, and usually under the promise of it being left to them.

As with our criminal law work and that in other areas, we often get clients coming to us to run appeals. Typically, the client was promised the deceased’s house, and may even have evidence of it, but they get knocked back at first instance in the Supreme Court. The most common reason for this is a lack of evidence.

This is another area, much like section 10 applications in the Local Court, where people think they should save on costs by representing themselves. There is even a Plaintiff’s template Summons and affidavit published on the Supreme Court website, and a guide for how to complete them. It would appear easy to a layperson, and generally their desire to save the estate from consumption by lawyers is noble. However, people forget that the Supreme Court is a Court of strict pleadings and strict evidence rules, not like the Family Court or NCAT. They also forget that the other side will usually have lawyers representing them, and specialists in the field at that, because in a decent case with good prospects of success, most lawyers in this area will take the case on a no-win-no-fee basis provided the estate can afford their fees (this is in fact the only type of case we do on that basis).

The result is that those lawyers will hold you to your mistakes in terms of both the strict legal powers and defences relied upon by both parties, and the evidence (or rather lack of evidence) presented in each case. The Court will continue to give self-represented litigants a chance, in terms of time to organise themselves, whether or not that expressly includes obtaining legal advice or amending their pleadings and evidence, or submitting further evidence, without assistance. However, the Court will only do that up to a certain point, and will not permit excessive delays or prejudice to the other side (i.e. where an estate asset is at risk of depreciating in value).

The Plaintiff always goes first when it comes to evidence. As such, the Plaintiff will very rarely know what type of evidence the Defendant(s) will rely upon until well after their own evidence is served. This puts the self-represented litigant at a disadvantage from the outset.

Unfortunately, in practical terms, what we see is that, when the self-represented litigant has had enough opportunities, and still can’t get it together, they end up getting a Judge offside. This puts them in a difficult position in terms of their own credibility, as is human nature, but it also puts them at a disadvantage in terms of their counter evidence.

While Plaintiffs do have a second go at evidence, it is generally evidence in reply. This means that further evidence can only usually be submitted that directly replies to the evidence served by the Defence, and not to raise new issues. By that stage, they are time-barred and out of chances, and the case is effectively closed. With insufficient evidence, they are sometimes even at risk of losing their claim and having a costs order made against them. To make matters worse, self-represented litigants usually have no idea as to the rules of expert evidence and admissibility, so have no ability to counter a good Defence expert with evidence suggesting, for example, that the deceased was of sound mind and capacity when they made their most recent Will cutting the Plaintiff out.

Sadly, we have seen a few clients lately who were self-represented, or poorly represented, and where exactly the above happened. They want to run an appeal, as they are convinced they were right and got a bad run. Usually, they were right, and their case had merits, but they now have several new problems. Firstly, the same lawyers who will take such a case on in the early stages at first instance on a no-win-no-fee basis will not do so for an appeal, or at least without charging to review the documents and the transcript to form an initial view of the prospects of success. It is too risky and take away too much time for them, and they cannot afford to take the case on without doing so first. The transcript for a case with a hearing time of only a few days can cost the client several thousand dollars alone. To make matters worse, there must usually be an error of law, as opposed to an error of fact, and when dealing with Supreme Court Judges, that is rarely the case. To clarify, the Judge must have made an error in terms of the law that applied, or applying it, and sometimes making an error of fact (such as miscalculating the value of the Plaintiff’s contributions) will not be entirely relevant. This means that, even though the Plaintiff was right, because of the way they presented their own evidence, the holes in it, the inadmissibility of part or all of it, and sometimes even a complete lack of any counter expert evidence, even if the Plaintiff does have the money to fund an initial advice as to prospects, they find they have no prospects on an appeal.

Ultimately, this is not a simple area, and the decision to represent yourself should not be taken lightly, especially if there are complex issues such as the mental capacity of the deceased. Spending some of the benefit on good legal representation can save a great deal on an appeal, and even mean the difference between receiving a benefit, or ending up in debt.

Please note: this is not legal advice to be relied upon, as circumstances in each case will be different. Contact us to discuss your individual circumstances.

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