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Will disputes: Family Provision claims explained

Catherine Henry Lawyers
Catherine Henry Lawyers

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If you believe that you have not received adequate provision for your maintenance, education or advancement in life under the Will of a relative, spouse, former spouse or someone with whom you were in a close personal relationship, then you may have a claim under the Succession Act 2006 (NSW) (‘the Act’) for what is known as family provision orders. You must however show that you are an ‘eligible person’ within the definition under the Act.

How long do I have to bring a claim?

Generally speaking, family provision claims must be made within 12 months of the date of death of the deceased will maker.

What property does a family provision claim deal with?

A family provision claim will involve all of the deceased person’s estate. The nature and extent of the deceased’s estate is usually that which is contained within the Probate granted by the Supreme Court.

If the Court decides that the estate is not sufficient to make the appropriate order in favour of the claimant (known as the plaintiff) then it can designate other property which does not strictly fall within the definition of estate property. This is known as ‘notional estate’ and can be ‘clawed back’ into the estate to be subject to the family provision claim. Read our blog on notional estate for more information.

Notional estate may include things such as property held as a joint tenant, gifts given shortly before the testator died and assets that the testator has transferred into someone else’s name but maintains control over (such as family trusts) and importantly superannuation benefits.

Do I need to take Court proceedings?

It is possible to settle family provision claims out of Court. However, settlement without Court Orders may not resolve a claim once and for all. Except in all but the rare case, it is only after orders are made by the Court that a claim is final and the estate can be distributed. There may also be tax advantages to be had by obtaining orders of the Court that would not otherwise be available.

A family provision claim can be commenced in either the District Court or the Supreme Court in their equity division. However, most claims are commenced in the Supreme Court because there is an appointed List Judge who case manages all Family Provision claims; mediation support; and no jurisdictional limit on the orders which can be made.

Who defends the estate’s interest?

Like most proceedings someone needs to defend the interests of the estate and the beneficiaries named under the will. Claims are generally defended by the executor appointed under the Will and to whom Probate of the will is granted. Occasionally, an executor will renounce their office and another person will be appointed to protect the interests of the estate and the beneficiaries under the will. This person is known as the defendant.

The defendant will have the responsibility of advising all possible claimants in relation to the estate of the claim, so that they will then have the opportunity of joining in the proceedings. The defendant is also under an obligation to defend the interests of the estate and the beneficiaries. This will include the obligation to settle reasonable claims so as to prevent the estate being wasted away in legal costs.

What happens when I lodge Court proceedings?

Once Court proceedings are lodged each party will be required to file affidavits setting out their evidence in relation to the application. The plaintiff will be required to file and serve their evidence first and then the defendant. Full financial disclosure must be given by the plaintiff and preferably by each of the beneficiaries under the will whose interests may be affected by a family provision order.

Once the evidence has been served the Court will more often than not refer the matter for mediation either by one of the Court’s deputy registrars or by a privately appointed mediator. The mediator will then attempt to facilitate a resolution of the matter in a non- confrontational and non-adversarial setting. In our experience most family provision matters settle at mediation.

If however the matter does not resolve at mediation it will be listed for hearing before a judge who will make the decision in relation to the claim.

Our team

Family provision claims are within an extremely specialised field of law. As such you need to ensure you have the very best legal advice and a lawyer who has extensive experience.

Our estates team has represented numerous clients in all aspects of family provision matters. We offer confident and considered advice in achieving the best outcomes for our clients.

If you have been inadequately provided for under a will, or you would like to update your will, please contact our estates team for timely assistance.

Read our fact sheet on family provision claims.

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