Wills & estates: Hitchcock v Pratt Part I - conflict between the Succession Act and the Constitution

The NSW Supreme Court recently considered aspects of the Succession Act 2006 (Act) in Hitchcock v Pratt [2010] NSWSC 1508. The case had interesting implications for legal advisers by considering the cross jurisdictional issues (domestic or international) that can sometimes arise for clients who are making or defending a family provision claim.

The facts

Richard Pratt (the deceased) was domiciled in Victoria at his date of death in April 2009. Probate of his Will was granted by the Supreme Court of Victoria to his widow, Jeanne Pratt (the defendant).

The estate mostly comprised shares, all of which were located in Victoria by virtue of the shares being in companies registered in Victoria and share registers kept in Victoria.

Sharilea Hitchcock and her daughter Paula Hitchcock (the plaintiffs) commenced proceedings in the Supreme Court of New South Wales for family provision orders even though the deceased left no direct estate in NSW. Sharilea Hitchcock claimed eligibility for provision as the de facto partner of the deceased. Paula Hitchcock claimed eligibility as a daughter of the deceased.

This Bartier Bulletin will look at the jurisdictional issues that arose:

Does the Court have authority to make an order?

Section 64 of the Act says:

"A family provision order may be made in respect of property situated in or outside New South Wales when, or at any time after, the order is made, whether or not the deceased person was, at the time of death, domiciled in New South Wales."

The defendant contended that the NSW legislature could not authorise the Court to make a family provision order affecting assets outside of NSW that belonged to a person domiciled outside of NSW.

This issue was addressed when Windeyer J considered the corresponding section 11(1)(b) in the preceding Family Provision Act 1982 (NSW) in Balajan v Nitikin (1994) 35 NSWLR 51, 57. In Hitchcock v Pratt Brereton J concurred with the conclusion of Windeyer J in Balajan v Nitikin that the legislature had over-reached its authority by stating that an order could be made whether or not the deceased or their estate had any connection with NSW. Rather, the section should be read down to operate as intended so that it applied to assets located in NSW of persons who had died domiciled elsewhere, and to assets located outside of NSW of persons who had died domiciled in NSW.

Commenting that the section was re-enacted largely unchanged in the Succession Act 2006 (NSW), Brereton J said: "In short, it seems that the provision was re-enacted without adverting to the circumstance that it had been held to be unconstitutional."

Is s64 of the Succession Act 2006 invalid?

It was also submitted by the defendant that s64 was invalid under the Australian Constitution as it was inconsistent with Victorian law. Brereton J observed that conflicting state laws do not make one law valid and the other invalid. As such, the rules of private international law apply, and in this case, only the NSW law of succession in relation to immovables located in NSW will take effect. Section 64 was valid to the extent that it applies to:

  • assets in NSW of a deceased domiciled outside NSW; and

  • assets outside NSW of a deceased who died domiciled in NSW.

Can a family provision order be made if there is no grant of representation?

It was suggested that the action could not be commenced as the grant had not been resealed in NSW. The Court held that a grant of representation in NSW is not a precondition to commence family provision proceedings or for the making of a family provision order.


Legal practitioners should be mindful of the need for a "requisite connection" to NSW when advising clients wanting to make a family provision claim. The case has clear relevance in the multi-jurisdictional context being it across the Australian jurisdictions or for international clients with multi-jurisdictional estate planning issues.

Author: Philip Davis